Kackler v. Ebersole & Glasscock

Court of Appeals of Kentucky

Kackler v. Ebersole & Glasscock

9 Ky. Op. 290, 1877 Ky. LEXIS 167

DecidedJanuary 24, 1877

StatusPublished

This text of 9 Ky. Op. 290 (Kackler v. Ebersole & Glasscock) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kackler v. Ebersole & Glasscock, 9 Ky. Op. 290, 1877 Ky. LEXIS 167 (Ky. Ct. App. 1877).

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Opinion

Opinion by

Judge Elliott:

To a suit by the appellees on a note for $553.65, the appellant answered that he executed the note sued on, but that it was executed through a mistake and a lack of knowledge of the true amount of his indebtedness to appellees, that said note was executed for at least $57 too much, and for a barrel of whiskey and box of tobacco- which appellant never received from appellees, but which through mistake was embraced in the note sued on.

After the filing of appellant’s answer the cause was transferred to equity, judgment having gone for the amount uncontroverted, and on final hearing judgment was rendered in appellees’ favor for the $57 which had been controverted by appellant’s answer.

■ We do not regard the answer as sufficiently setting up even a partial offense. In it appellant states that the note sued on was executed1 for “$57 too much,” but he does not state how the mistake occurred or in what it consisted, and then says “and for a barrel of whiskey which appellant never received from appellees, but which through mistake was embraced in the note sued on.” There is no allegation that the note was executed in part consideration of a barrel of whiskey and box of tobacco which were to be afterwards delivered, but which appellees had failed to- deliver, nor is it stated what the barrel of whiskey and box' of tobacco were worth. The answer is certainly too indefinite to be a good defense of mistake in the execution of a note, the execution of which is not denied. But if the answer amounts to anything, it is that appellant owes all the note except $57, for as there was no consideration for the $57 the same ought to be deducted from the note and judgment go for the balance by reason of a mistake in the execution of the note. A partial failure of consideration, which is the result of a mistake as to what is really due the obligee in a note at the time of its -execution, [291]*291is only a matter of defense, and as this is all the answer amounted to the judgment is affirmed.

W. H. Cord, for appellant. E. C. Phister, for appellees.

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Opinion by

Judge Elliott:

To a suit by the appellees on a note for $553.65, the appellant answered that he executed the note sued on, but that it was executed through a mistake and a lack of knowledge of the true amount of his indebtedness to appellees, that said note was executed for at least $57 too much, and for a barrel of whiskey and box of tobacco- which appellant never received from appellees, but which through mistake was embraced in the note sued on.

After the filing of appellant’s answer the cause was transferred to equity, judgment having gone for the amount uncontroverted, and on final hearing judgment was rendered in appellees’ favor for the $57 which had been controverted by appellant’s answer.

■ We do not regard the answer as sufficiently setting up even a partial offense. In it appellant states that the note sued on was executed1 for “$57 too much,” but he does not state how the mistake occurred or in what it consisted, and then says “and for a barrel of whiskey which appellant never received from appellees, but which through mistake was embraced in the note sued on.” There is no allegation that the note was executed in part consideration of a barrel of whiskey and box of tobacco which were to be afterwards delivered, but which appellees had failed to- deliver, nor is it stated what the barrel of whiskey and box' of tobacco were worth. The answer is certainly too indefinite to be a good defense of mistake in the execution of a note, the execution of which is not denied. But if the answer amounts to anything, it is that appellant owes all the note except $57, for as there was no consideration for the $57 the same ought to be deducted from the note and judgment go for the balance by reason of a mistake in the execution of the note. A partial failure of consideration, which is the result of a mistake as to what is really due the obligee in a note at the time of its -execution, [291]*291is only a matter of defense, and as this is all the answer amounted to the judgment is affirmed.

W. H. Cord, for appellant. E. C. Phister, for appellees.

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Bluebook (online)

9 Ky. Op. 290, 1877 Ky. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kackler-v-ebersole-glasscock-kyctapp-1877.