Clark v. Hines

6 Ky. Op. 556, 1873 Ky. LEXIS 277

• Court: Court of Appeals of Kentucky
• Decided: March 12, 1873
• Status: Published

Opinion

Opinion by

Judge Pryor:

There was n0‘ attempt to sustain the plea of payment by any proof whatever.

Hines and Thomas were the drawers of both bills, and obtained the money on them' by a sale and transfer to the Bank of Bowling Green.

The bills were addressed to R. H. Robinson, Louisville, Ky. The paper has long since matured and no part of the money has has ever been paid by the appellees. Robinson had no funds of the appellees with which to pay any part of the debt, or, if he had, it is co'nceded and also proven that every dollar of the funds he had in his hands belonging to the appellees has been withdrawn by them, and it is now argued by counsel that, because the paper was not presented to Robinson for acceptance the drawers are discharged from all .liability.

The appellees have sustained no loss by reason of the failure of the appellant to present the paper for acceptance. It is not pretended that Robinson owes them one cent, but is admitted that the drawers have received every dollar from Robinson with which they intended the paper should be taken up.

Rodes ■& Ciar, J. K. Underwood, for appellants. Warner Underwood■, for appellees.

If the appellants should institute an action against Robinson no recovery can be had for the reason that he has never accepted the paper, and for the additional reason that all the funds he had belonging to Hines and Thomas have been paid them; and yet Hines and Thomas say: “Although we withdrew the funds and have never paid you your money, still we are released because you failed to present the two bills for acceptance.

Upon the, facts shown there is no doubt but what the appellant was entitled to a judgment. The judgment of the court below is reversed and cause remanded with directions to award the appellant a new trial, and for further proceedings consistent with this opinion.