Woodward v. McDonald

1 Ky. Op. 71, 1867 Ky. LEXIS 229

• Court: Court of Appeals of Kentucky
• Decided: January 10, 1867
• Status: Published

Opinion

Opinion of the Court by

Judge Peters :

Where the personal acts of the defendant are alleged and relied upon as the facts which constitute the cause of action against him, he will not be allowed to set up a want of knowledge or information to form a belief as to their existence as a defense to the action. Nor do the matters alleged by way of avoidance in the answer present any defense.

Rut appellant states that he had no knowledge or recollection that appellees had any tobacco in Padueah, nor that he had taken .any of their tobacco under his control, and management, and he .also states that his books and memorandum which he kept in relation to the cotton and tobacco over which he took control were removed from the State by Gen. Payne, and he, therefore, could have mo access to them, thus putting in issue by a sufficient denial the facts that appellees had any tobacco in Paducah upon which he could have collected or did collect the illegal charges alleged to have been collected by him. These material facts having been "traversed by the answer, the demurrer to it was improperly sustained. Wherefore, the judgment is reversed, and the cause remanded, with directions to overrule the demurrer to the petition and for further proceedings not inconsistent with this opinion.

Yeiser & Bloomfield, for appellees.