Gand v. Green

4 Ky. Op. 287, 1870 Ky. LEXIS 333

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1870
• Status: Published

Opinion

Opinion op- the Court by

Judge Hardin :

The petition contains no averment of any agreement or undertaking in writing, or parol by the defendant that he would warrant the solvency of Mallory’s estate, the alleged “verbal assignment” importing no more than a mere sale and delivery of the note, without assigning it, which has been repeatedly held to develope no responsibility on.the seller, for the solvency of the obligor in the debt, without some express contract to that effect. Nor does the petition allege such diligence in prosecuting the claim against Mallory’s estate as was necessary as a prerequisite to the suit for recourse against an assignor.

Whether more than fifteen per cent, of the debt could have been realized, should have been ascertained by judicial proceedings, and the mere presentation of the claim in a suit to settle Mallory’s estate, without any conclusive result was not sufficient to establish a right of action against the defendant, if he was otherwise bound as assignor of the note.

Stevenson, for appellant. Gantrill for appellee.

Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the petition, and for other proceedings not inconsistent with this opinion.