140 Ky. 346 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
Appellee, O’Neil Coal & Coke Company, instituted this action in the Jefferson circuit court, against W. F. Gregory and E. R. Bassett, to recover on the following note:
“Louisville, Ky., Nov. 2, 1909, $500.00.
“Four months after date for value received we or either of us promise to pay to the order of the Falls City Brick Manufacturing Compan}7' five hundred dollars, negotiable and payable at the Continental National Bank of Louisville, Kentucky. And all parties hereto waive notice of protest, demand and notice of nonpayment of this paper if not honored at maturity. Interest after maturity until paid.
“W. F. Gregory,
“J. F. Connor,
“E. R. Bassett,
“Sureties.”
Appellant defended on two grounds: First, that the note was executed by mutual mistake; that the Falls City
The court did not err in refusing to transfer the case to the equity docket.. Even if the note should be reformed to meet the allegations of the first paragraph of the answer, it would in no way affect appellant’s liability thereon. Whether appellant was surety on the note executed to the Falls City Brick Manufacturing Company and indorsed by it to appellee, or was surety for the Falls City Brick Manufacturing Company oñ a note executed to appellee, his liability would be the same. While there was no consideration moving to appellant, there was a consideration moving to his principal, and that was sufficient to make appellant liable on the note. As the first paragraph of the answer presented no defense, the court properly sustained a demurrer thereto.
Without passing upon the question, whether or not appellee’s failure to prosecute its alleged lien claim¡ against the bankrupt Fails City Brick Manufacturing Company in time to participate in the assets of that company as a lien-claimant would release appellant from lia
Judgment affirmed.