Buster v. Kindrick

240 S.W.2d 624, 1951 Ky. LEXIS 1003

• Court: Court of Appeals of Kentucky
• Decided: June 12, 1951
• Status: Published

Opinion

CLAY, Commissioner.

Appellant brought this action to recover on a promissory note and to foreclose a mortgage lien. The Court submitted to a jury the question of whether or not the terms of the mortgage contract had been orally changed. The jury found for ap-pellees, and appellant’s petition was dismissed.

This appeal brings before us only the question of whether or not the pleadings support the judgment. The original transcript of record contains appellees’ Answer, which alleges an oral agreement was entered into contemporaneously with the signing of the note and mortgage, varying the terms thereof. Evidence of such contemporaneous agreement would be incompetent and, therefore, this Answer did not plead a valid defense.

Appellees, however, have filed an additional transcript containing a different Answer, which pleaded that the verbal agreement changing the contract terms was entered into six or eight weeks after the original note and mortgage were signed. Considering the affidavit of the Judge who tried the case and that of his clerk, and the principal instruction given to the jury, it is evident the only issue tried was the one raised by this Answer. We have, therefore, sustained appellees’ motion to strike the Answer appearing in the original transcript of record and to permit the filing of the one brought here by appellees.

In our opinion the Answer actually filed by appellees in this action alleged a valid defense to the suit, and as the only question before us is whether or not the pleadings support the judgment, it is our conclusion that they do so.

The judgment is affirmed.