104 Ky. 310 | Ky. Ct. App. | 1898
DELIVERED THE OPINION OE THE COURT.
The petition in this action reads as follows: “Ths plaintiff, R. M. Barnes, alleges that on the 12th day of March, 1866, the defendant, A. H. Chism, by his written promissory note, which he on said day executed and delivered to this plaintiff, promised and agreed one day thereafter to pay plaintiff the sum of $500, but has paid no part thereof, except the sum of $100, paid March lá, 1867; and said note, subject to said credit, is now due and unpaid. Said note, in words and figures, is as follows: ‘$500.00. Due R. M. Barnes, borrowed money, five hundred dollars. Yalue reed. 12th March, 1866. A. H. Chism,’ —and is filed herewith as part hereof. Plaintiff alleges that in August, 1889, and repeatedly since said time, and within less than five years last past, the defendant, A. n. Chism, has agreed and promised to pay said debt, and has repeatedly recognized said note and debt as a subsisting debt since the same has been barred by the statutes of limitations by reason of the lapse of' more than fifteen years, since the last payment on said note. Now plaintiff, in this behalf, recognizing the fact that the note is barred by the said statutory presumption of payment, does not rely on the note as his cause of recovery, but says that he is entitled to a recovery on the new promise; and upon the same he brings his suit, and asks judgment for the sum of $500, with interest from March 12, 1866, until paid, subject to a credit of $100, paid March ii, 1867. Wherefore plaintiff sues, and relies on said
The grounds for a new trial are as follows: (1) That the verdict or decision is not sustained by sufficient evidence, or is contrary to law; (2) error of law occurring at the trial, and excepted to by the defendant at the time. It may be conceded that the contention of appellee is correct, so far as the first ground relied on for a new trial is concerned, and that the same is too vague or uncertain to present any question for decision, but it seems to us that the second ground is sufficient to raise the question as to error of the court in regard to giving or refusing instructions.
It is further contended by appellee that there is no legal bill of exceptions, for the reason that none appears to have been filed until after the fourth day of the February term, 1896, of the Circuit Court; the court having previously given appellee until said time to prepare and tender the bill of exceptions. It will, however, be seen
G. S. Spears testified as follows: “I received the note sued on by mail in the spring of 1893, and a letter from plff., authorizing me, as an atty., to collect this note from deft. I saw deft, in a few days after I got the letter and note, 1893. He told me he would come to my office and^see about it. In a few days he came to my office, in 1893, and said he was not able to pay all the note, but that the note was all right, and that he had given it to plff. He offered to give me his individual interest in a tract of pasture land of about ten acres near town, which he and W. G. Hughes owned jointly, and also his interest in a tract of timber land in Monroe county, and said he could not pay more on it, and that this must be taken in full settlement of' the debt. I then told deft. I would write plff., and inform him of this proposition. I did write to plff., and .he wrote me not to accept the proposition.' I then refused to have anything further to do with it, and plff. directed me to send it to another atty., and I did sent it to A. W. Scott.” The appellant testified as-follows: “I heard Mr. G. S. Spears testify in this action, and what he stated is correct in substance. I called on Basil Richardson, also, to know what he and Spears were going to do with the note; and he said, if I would give up the land referred to by Spears, and $300, he would release me of the debt. I then told him that I would not do it, as I was getting old and in poor health, and did not know that I would ever have $300. I was getting a pension at the time I wrote the letter to plff. I had reference to an increase, in my letter to plff.” The
On November Kith response to petition for a rehearing was delivered by Judge DuRelle.
The petition for rehearing is based upon a distinction between a new promise to pajr a debt barred by the statute of limitations and a promise to pay a debt from which the debtor has been relieved by discharge in bankruptcy, and the cases of Trousdale, Adm’r, v. Anderson, 9 Bush, 279, and Warren v. Perry, 5 Bush, 450, are especially relied on. But the evidence in the case at bar does not come within the ruling of either of those cases. In Trousdale v. Anderson the rule was thus stated: “It therefore follows