Worsham's Adm'r v. Miller

8 Ky. Op. 19, 1874 Ky. LEXIS 324

• Court: Court of Appeals of Kentucky
• Decided: June 30, 1874
• Status: Published

Opinion

Opinion by

Judge Lindsay :

The demurrer to the original petition was properly overruled. The promise to pay the debt after the discharge in bankruptcy is sufficiently averred, and the right to recover is based upon said promise.

There is some proof conducing to establish the promise. The statement of the intestate made to J. W. M. Miller in Atlanta, whilst of itself is insufficient to establish the promise, certainly does conduce to show that Worsham ha.d agreed to pay the debt; and the interview between Worsham and Saufley, when considered in the light of said statement to J. W. M. Miller, would have authorized a jury to infer the making of the promise. Certainly, with such proof before the jury, the court should not have instructed as in the case of a nonsuit. The finding of the court must in this case be treated as the verdict of a jury. It was not error to give judgment for interest; if the intestate agreed to pay the debt at all, he agreed to pay all of it, interest as well as principal.

Judgment affirmed.