Roberts v. Ketchen

5 Ky. Op. 254, 1871 Ky. LEXIS 358

• Court: Court of Appeals of Kentucky
• Decided: January 5, 1871
• Status: Published

Opinion

Opinion by

Judge Peters:

As early as 30th of October, 1860, appellee sent to decedent Roberts a statement of the amount of the note, interest, and exchange, with a request that he would make an acceptance payable at the branch of the Bank of Kentucky, in Frankfort, and it is proved by Smith that he paid to appellee for decedent about $160 on an acceptance of the latter to the former, and took his receipt for the amount paid, the receipt is lost, and the time and amount paid are not precisely remembered by the witness but he fixes them to correspond substantially with the amount of the note sued on, and the date when the acceptance would mature.

Having proved this payment, if it was not to be applied to this debt, it was incumbent on appellee to show by proof that he had another debt against decedent to which it was applied, and this he has wholly failed to do. Nor does he account for his failure to sue the administrator of decedent after he dismissed his first suit on this note, if he intended again to make an effort to collect the same, where upon his first effort by suit his attorneys were satified that the proof of payment was so strong as to compel a jury to find against him. We cannot therefore concur in opinion with the circuit court, but are constrained from the evidence to conclude that the note had been paid off by decedent. Wherefore the judgment is reversed, and the cause is remanded with directions to dismiss the petition absolutely.