Crider v. Smith

4 Ky. Op. 698, 1872 Ky. LEXIS 152

• Court: Court of Appeals of Kentucky
• Decided: February 6, 1872
• Status: Published

Opinion

Opinion op the Court by

Judge Pryor:

Tbe demurrer to tbe answer of tbe appellant was properly sustained. Tbe answer states in substance, that tbe appellant received no consideration for tbe assignment, but made it at tbe request of tbe parties. That Smith knew tbe land for which tbe note was executed belonged to Edward Orider, and that the latter owned tbe note; that be also knew that Edward Orider was to perform tbe covenant in tbe deed in regard to tbe building of tbe fence. These allegations may all be true and upon tbe demurrer be so held and still tbe appellant is liable on bis assignment. If, by reason of this assignment, tbe consideration for tbe note passed to Eldward Orider or to a third person, it renders tbe assignor as responsible as if be bad received tbe money. Tbe law implies a liability on tbe part of tbe assignor to pay tbe consideration received by himself or a third person in the event tbe note when assigned was paid off, or any part of it, or when it could not be collected by reason of good or equitable set-offs against it by tbe obligors. There is no allegation in tbe answer that W. A. Orider by an agreement between tbe parties was not to be held liable as assignor. Tbe note was payable to him— be assigns it — the consideration was paid to Edward Orider, and it may be that tbe appellee required appellant’s name in tbe note before be would part with bis money. This could be tbe presumption of law on tbe facts presented in the answer. The appellant may not have received one dollar himself, but if Edward Crider did, by.reason of this assignment, he is liable unless there was an agreement by which he was not to be held as assignor. There is no exception to the reading of the record in the Louisville chancery court. It was made part of the original petition and the allegations in regard to the result of that suit, are not denied in the answer. Smith and wife are both plaintiffs in the court below, and the benefit of the judgment passing to the wife is no cause of complaint on the part of appellant, and besides no exception was made or taken upon this point in the court below. The judgment, however, is for too much. The record of the suit from Jefferson shows that the obligors in the note received a credit for a note of $100 held on Smith. This amount should have been a credit on the judgment of the date of the note. The judgment of the court below is reversed and cause remanded for further proceedings consistent herewith.

Rodman, DeHaven, for appellant. Lee & Rodman, Carroll, for appellees.