Wintersmith v. Wintersmith

Court of Appeals of Kentucky

Wintersmith v. Wintersmith

3 Ky. Op. 406, 1869 Ky. LEXIS 457

DecidedNovember 19, 1869

StatusPublished

This text of 3 Ky. Op. 406 (Wintersmith v. Wintersmith) 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

Wintersmith v. Wintersmith, 3 Ky. Op. 406, 1869 Ky. LEXIS 457 (Ky. Ct. App. 1869).

Pincite

Opinion

Opinion of the Court by

Judge Robertson:

The appellee’s answer to the cross petition, setting up the appellant’s account as a set-off or payment, is evasive, and, when carefully scrutinized does not deny the services or the other facts charged in the account. The credits as claimed may be presumed to have been intended and understood by the parties as partial payments, for she says that, if the account was just, she had paid it. And whether there was actual payment, or only an expected set-off, the statute of limitaitons would not apply.

We are therefore of the opinion that the account as exhibited should be adjudged a payment 'at the date of it, and consequently the circuit court erred in not allowing the appellant a credit pro tanto, or granting a re-bearing.

Wherefore the judgment is reversed and the cause remanded with leave to the appellee to file an amended answer and for further proceedings for litigating the appellant’s account.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion of the Court by

Judge Robertson:

The appellee’s answer to the cross petition, setting up the appellant’s account as a set-off or payment, is evasive, and, when carefully scrutinized does not deny the services or the other facts charged in the account. The credits as claimed may be presumed to have been intended and understood by the parties as partial payments, for she says that, if the account was just, she had paid it. And whether there was actual payment, or only an expected set-off, the statute of limitaitons would not apply.

We are therefore of the opinion that the account as exhibited should be adjudged a payment 'at the date of it, and consequently the circuit court erred in not allowing the appellant a credit pro tanto, or granting a re-bearing.

Wherefore the judgment is reversed and the cause remanded with leave to the appellee to file an amended answer and for further proceedings for litigating the appellant’s account.

Cite This Page — Counsel Stack

Bluebook (online)

3 Ky. Op. 406, 1869 Ky. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wintersmith-v-wintersmith-kyctapp-1869.