Wallenstein v. Selizman & Co.

70 Ky. 175, 7 Bush 175, 1870 Ky. LEXIS 25

• Court: Court of Appeals of Kentucky
• Decided: August 17, 1870
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion oe the court. ^

To an action on an account due by the appellant, a citizen of Clark County, Kentucky, to the appellees, as partners, in Cincinnati, he pleaded as an equitable set-off an equal amount alleged to be due him by one of the partners as indorser of a note given by the other partner. The answer alleged that as the amount sued for would be due, on a partnership settlement, to the indorsing partner, and that the note, though over due, liad never been paid; and therefore the appellant sought a transfer to equity, a settlement of the partnership account, and a final set-off. A demurrer to this answer was sustained, and judgment rendered for the amount of the account.

If the indorsing parties be liable for the amount of the note, as there was no remedy by original action in Kentucky, a court of equity had jurisdiction to decree the set-off, and as necessary thereto the incidental right to require the settlement sought. But the answer shows that by the law of Ohio the note operated as a bill of exchange, which requires punctual presentation, protest, and notice. None of these are alleged; consequently the answer, admitted to be true, does not show the indorser’s liability.

Wherefore the judgment was right, and must be affirmed.