Partlow v. Clark

3 Ky. Op. 502, 1869 Ky. LEXIS 501

• Court: Court of Appeals of Kentucky
• Decided: October 5, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

The demurrer was to the answer and cross-petition of Washington Partlow, leaving the fact whether Wesley Partlow was a partner, and as such, bound for the debt claimed in the petition, traversed by his answer, to be tried.

The cross-petition set up a claim for a credit for the delivery of more iron than was credited on the account, and Washington Partlow in his answer denied the coffee, sugar, molasses and bacon were worth, at the time and place of delivery, as much as was charged for them in the account. These were facts which he had a right to inquire into, and presented an issue. By sustaining the demurer to his answer and cross-petition, an investigation of these facts was prevented, leaving the fact put in issue by Wesley Part-low’s answer, alone to be tried. And as the record is here presented, we must presume nothing else was tried.

Although the answer demurred to is evasive and insufficient as to some items, as to some it was good.

Wherefore, the judgment is reversed and the cause is remanded, with directions to overrule the demurrer to the answer and cross-petition, and for further proceedings consistent herewith.