Cunningham v. Simpson

6 Ky. Op. 484, 1873 Ky. LEXIS 231

• Court: Court of Appeals of Kentucky
• Decided: February 19, 1873
• Status: Published

Opinion

Opinion by

Judge Pryor :

The court below erred in instructing the jury to find for the defendant.

There was an express offer made to pay the appellant two hundred dollars, and no objection made to the whole of appellants’ claim except that the order given for the amount and which seems not to have been produced was either lost or mislaid, and therefore the appellee, refused to settle. *

The evidence is of such a character as required that the jury ■ should say whether there was such an acknowledgment of the debt as implied a promise to pay.

The filing of the amended, pleading was an abandonment of the original cause of action. This does not, however, preclude the appellants from showing the original consideration, as it must constitute the basis of the new promise or acknowledgment if any was made.

The judgment of the court below is reversed and cause remanded with directions to award the appellants a new trial and for further proceedings consistent with this opinion. .