Beal v. Lampkins

5 Ky. Op. 196

• Court: Court of Appeals of Kentucky
• Decided: October 13, 1871
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The name of the appellant A. J. Beal having been written across the back of Carter’s note instead of signed at the close of it, the legal presumption is 'that he intended to become bound as an endorser or guarantor, and not as a co-obligor ■ with Carter. To escape this presumption appellee by his amended answer charges that Beal’s name waá thus written because there was not room at the close of the note, but ¡that he so signed it in pursuance to' a contract between appellee and Carter, intending thereby to bind himself as a co-obligor. It is these allegations which make the petition good, and upon the truth of the same depends appellee’s right to recover against Beal in this action. Appellant by his answer denies any knowledge, information or belief as to the alleged agreement between appellee and Canter.- He denies that he undertook to be bound on the note as a co-obligor or that he signed his name on the back of it with any such intention, and alleges- that his intention was to bind himself as an end'orsér or assignor and in no other way.

Harrison, for appellant. Lindsay, for appellee.

If this answer be true, appellee can have no cause of action against Beal until with proper diligence he' prosecutes Carter to insolvency. The court erred in sustaining appellee’s demurrer. Judgment is reversed and this cause remanded with instructions to overrule said demurrer and for further proceedings consistent with -this opinion.