161 Ky. 530 | Ky. Ct. App. | 1914
Opinion op the Court by
— Affirming.
This action was originally brought by Fred Fulkerson against the defendant, A. W. Campbell, to recover •on three promissory notes, one for $318.80, dated October 3,1896, and payable four months from dateone for $1,065, dated October 3,1897, and payable April 29,1898; and one for $1,302.66, dated October 30, 1897, and payable April 9, 1898, subject to a credit of $1,000 paid1 February 13, 1903. Each of the notes so signed by defendant Campbell was payable to the order of A. Mims. The notes were endorsed by Mims and transferred and delivered to Fulkerson. Afterwards Mims paid Fulkerson and became the owner and holder of the notes. During the pendency of the action Mims was made a party "by amended petition, and the action thereafter proceeded in the name of Mims and Fulkerson. In addition to a plea of payment, defendant Campbell also attempted to plead that the notes were in controversy in the suit of Mims v. Campbell, and were concluded by the judgment therein entered. On final hearing the trial court rendered judgment in favor of Mims. Campbell appeals.
While Campbell attempts to show in a roundabout and unsatisfactory way that the notes sued on were paid, his evidence utterly fails to establish the plea of payment. On the contrary, his letters, which are in the record, show that he frequently recognized the notes in question as a subsisting obligation.
But it is insisted that the notes were in controversy in the suit of Mims v. Campbell, and were concluded by the judgment entered in that case. Briefly stated, the
“That the plaintiff, A. Mims, filed with the Receiver of this defendant appointed, as set out in paragraph three of original answer herein, a claim against this defendant of Eighty-seven Hundred and Ninety-six and 32/100 ($8,796.32) Dollars, which said plaintiff claims did not include certain notes, known as the Fred Fulkerson notes, amounting to Twenty-six Hundred and Eighty and 80/100 ($2,680.80) Dollars; his payment on*533 the Paw Paw lands of $1,000.00; and his note to the Big Sandy National Bank of $1,000.00, and same did not include a present account of A. Mims represented by sundry notes of this defendant, amounting in all to Twelve Hundred ($1,200) Dollars.
“Defendant says that plaintiff’s account against the defendant at the time same was filed with the receivers did not amount to Eighty-seven Hundred and Ninety-six and 32/100 ($8,796.32) Dollars, nor was he indebted to him at that time in the sum of $8,796.32, and that at the time same was so filed it was agreed that said account and the notes above referred to should be subject to further investigation and corrections, if found to be incorrect.
“The defendant states that crediting the plaintiff with the account so filed with the receivers, to-wit: $8,796.32 and the sum of $2,680.80; the payment on the Paw Paw land of $1,000; the note of the Big Sandy National Bank of $1,000.00 and the sundry notes amounting to $1,200.00 above referred to, which is the total amount of plaintiff’s claims against defendant, amounting to Fourteen Thousand Six Hundred and Eighty-seven and 12/100 ($14,687.12) Dollars, which defendant says is an account in excess of any just or rightful claim by plaintiff against defendant, and defendant says that there was paid to plaintiff by the receivers and he paid to him sundry amounts at divers times not credited by plaintiff to him amounting in all to $18,523.60, and that giving plaintiff full credit for all amounts claimed by him crediting the amounts actually paid to him by receivers and by the defendant not credited by plaintiff upon his account, leaves due and owing the defendant upon this account the sum of $3,836.48.”
Campbell filed with his deposition the statement of his account with Mims: following
“Account of A. Mims filed with Receivers.........$ 8,796.32
Fred Fulkerson........................................................................... 2,680.80'
Payment on Paw Paw lands.......................................... 1,000.00
Big Sandy National Bank................................................ 1,000.00
The present account of A. Mims in notes is about .......................................................................................- 1,200.00
The above items constitute the entire claim of the plaintiff in this action against the defendant, A. W. Campbell, amounting to......................................................................................................... 14,687.12
*534 Against the above account there has been paid out in cash:
By the Receivers........................................................................ 8,796.32
Proceeds .of bank stock..................................................... 2,000.00
One check dated Dec. 9, 1896....................................... 100.00
One note dated June 11, 1897....................................... 650.00
One note dated June 28, 1897....................................... 500.00
One note dated July 14,1897.......................................... 500.00
One note dated August 24,1897................................. 175.00
One note dated Sept. 7, 1897.......................................... 150.00
One note dated Sept. 30, 1897....................................... 500.00
One note dated Oct. 25, 1897.......................................... 550.00
One note dated Nov. 2, 1897................ 500.00
One note dated Dec. 6,1897............................................. 550.00
One note dated Dec. 21, 1897.......................................... 500.00
One note dated Jan. 5,1898............................................. 250.00
One check dated Mar. 2, 1898....................................... 500.00
On June 10, 1898, check to Monte J. Goble for $1,618, of which plaintiff got in payment of two notes of $500.00 each and had a credit on two other notes for $84.75, making a total of.................................................................. 1,084.75
On June 11, 1897, check to Monte J. G-oble for $3,017.53 of which plaintiff got in payment of note for $2,323.75 the sum of.________ 1,173.75
And interest on note............................................................... 43.78
Leaving a balance for which a new note was executed of $1,200.00 --
Total................................................................................................$18,523.60
From which subtract............................................................ 14,687.12
Leaving a balance due Campbell from Mims of......................................................................................................... $3,836.48”
On final hearing the trial court dismissed the counterclaim of Campbell, and gave judgment in favor of Mims for $1,000, with interest from the date of its payment. On appeal to this court the judgment was affirmed. Campbell v. Mims, 149 Ky., 101. Campbell’s position is this: After giving Mims credit for all sums owing by him to Mims, including the Fulkerson notes, he alleged certain balances amounting to $3,836.48 in excess of these credits, and asked judgment by way of counterclaim for that sum. In rejecting the counterclaim, the notes were necessarily in issue, and therefore the judgment in the Mims v. Campbell suit, referred to, precludes Mims
Judgment affirmed.