117 Ky. 689 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
This action was instituted by tbe Beattyville Bank, of Beattyville, Ky., against T. T. Roberts, Ibby Roberts and tbe
The facts developed by the testimony are as follows: On the 22d of November, 1901, T. T. Roberts and Ibby Roberts executed and delivered to the J. W. Slack Company, of Louisville, Ky., the following promissory note: “686.00. Beattyville, Ky., Nov. 22, 1901. Four months after date we promise to pay to the order of John W. Slack Co., distillers of Louisville, Ky., $686.00, without defalcation, value received, negotiable and payable at the Beattyville Bank, Beattyville, Ky. (Signed) T. T. Eoberts, Ibby Eoberts.” Simultaneously with the execution of this note, the J. W. Slack Company executed and delivered to T. T. Eoberts the following written agreement: “We have this day sold to T. T. Eoberts fifteen barrels of ninety-eight whisky, and twenty barrels new, for which he gives me his four months note, dated November 22,1901, for $686.00. If Mr. Eoberts should die, we agree to take back the whisky at what it was sold to him. J. W. Slack Company, By J. W. Slack, President.” Before the maturity of this note, the J. W. Slack Company, by J. W. Slack, indorsed and delivered it for value to the
Upon the trial T. T. Roberts testified that he did not know that the bank held the note until he received this notice, and that he immediately went to the bank and notified R. N. Goodloe, its cashier, that he had a contemporaneous parol agreement with the J. W. Slack Company that he was only to pay for the whisky as it was delivered to him, and that he had already paid to them $140 for whisky delivered, which should be credited upon the obligation; and that he directed him to return the note to the <J. W. Slack Company, and not to purchase any more of his notes executed to the company, and at the same time explained to him the conditions of the written! agreement of the Slack Company to him; that a few days after his conversation with Goodloe he received a letter from the Slack (Company, inclosing the $686 note,, da.ted November 22, 1901, and the note sued on for $546, which he executed in renewal of the balance due upon his original obligation, which reads as follows: “546.00. Beattyville, Ky., March 25, 1902. Four months after date we promise, to pay to the order of John W. Slack Co., inc. distillers, of Louisville, Ky., $546.00, without defalcation value received, negotiable and payable at the Beattyville Bank, Beattyville, Ky., T. T. Roberts, and Mrs. Ibby Roberts.” That after the 'execution of the last named note the Slack Company failed in business, and that he never received any more of the whisky from them; that Slack represented at the date of the execution of the note that the whisky was in bond in his warehouse in Louisville, but that he did not give him any
The partial or total failure of consideration, or fraud, in the execution of a note made payable and negotiable at an incorporated bank, which has been discounted before maturity by a bank of this Commonwealth or organized under the laws of the United States, is not available as a de
There is nothing in the written contract relied on by appellee which suggests any lack of consideration for the execution of the original note; it was simply an agreement ton the part of the Slack Company to buy back the whisky in the event of the death of appellee. As he was alive at the date of the maturity of the note, he certainly could not rely upon this agreement to defeat recovery; and there was mo claim by appellee that appellant had notice of his alleged contemporaneous parol agreement with the Slack Company that he was only to pay for the whisky as delivered, previous to or at the time of the purchase by them of the original obligation of November 22, 1901. The law presumes a consideration for the execution of bills of exchange, and negotiable notes placed upon the footing of bills of exchange by the statute, for the benefit of the. holder, in an action against the maker or indorser of such paper. Besides, it was not competent for appellee, to impeach his written contract by testimony of a contemporaneous parol agreement providing ■for a different time and manner of payment. The note sued on was simply the renewal of the balance due upon the original obligation, which appellant had purchased in due course of business without notice. It was not a new transaction. Even if it be conceded that appellee notified appellant’s cashier, at the time he was called upon to pay the original obligation,'of his parol agreement with the Slack Company that he was only to pay for the whisky as it was delivered, and that the original note was without consid
We have reached the conclusion that there was no competent testimony to support the plea of no consideration relied on to defeat recovery, and that the trial court should have given the jury a peremptory instruction to find for the plaintiff. ' The judgment is therefore reversed, and cause remanded for proceedings consistent with this opinion.