Cooper v. Pennington

7 Ky. Op. 660, 1874 Ky. LEXIS 271

• Court: Court of Appeals of Kentucky
• Decided: April 7, 1874
• Status: Published

Opinion

Opinion by

Judge Hardin :

If it be true, as is contended by the appellants, that the demurrer to the original answer should have been sustained, yet, as it appears that an amended answer was filed at the time of the trial, and this last pleading is not copied intoi the record, this court must presume that it was such as to cover the defects of the original answers, and with it, constitute a valid defense.

As to the proof of Horton’s statements, it appears to have been excluded by the court.

The only important question presented is whether or not the court properly instructed the jury to the effect that if, after the contract had been signed by the several obligors, including Red-wine and Jasuell, and was in the hands of Horton for delivery to the appellants, it was, without their knowledge and approval, altered by the erasures of part of the subscribed names, that alteration rendered the obligations of the appellees void. It does not certainly appear that Horton was in any legal sense the agent of the appellants, so that the appellees’ contract could have been completed by its simple delivery to him:; and as he was entrusted with it for the purpose of delivering it to the appellants, if previous to delivering it he had made the erasures, without their knowledge, we are not prepared to say, in view of the authorities' touching the question, that the appellees would not have remained bound by the writing; but if, as is hypothetically submitted to the jury, and is in fact proven by one of the appellants, Horton, before delivering the obligation, made the erasures without the knowledge, authority, or consent of the appellees, we are clearly of the opinion that the alterations operated to release them according to principles well settled by this court.

Cooper & Burns, for appellants. ■ J. R. Botts, for appellees.

Wherefore the judgment is affirmed.