11 Ky. Op. 580 | Ky. Ct. App. | 1881
Opinion by
On the 19th day of March, 1870, the firm of Davis, Storts & Co. executed a promissory note for $400 to appellee, and on the 1st of January, 1876, the firm of Davis, Moody & Co., composed of Wm. Davis, Geo. E. Moody, John Mangold and- Camp
Upon the trial the jury returned a general verdict in favor of appellee for the amounts of the two notes subject to credits allowed, and also thirteen special verdicts. Appellants moved the court for judgment in their favor upon the special verdicts, notwithstanding the general verdict, and also, upon grounds filed, moved the court to set aside the general verdict and grant them a new trial. But, both motions being overruled and a judgment rendered in accordance with the general verdict, they have appealed to this court, and assigned the following errors.
1. That the court erred in overruling their motion for judgment upon the special verdicts, notwithstanding the general verdict, and in giving judgment for appellee,
2. In refusing to render judgment for them, or to dismiss the petition as to either of the notes.
3. In overruling their motion for a new trial.
The grounds of motion for a new trial are: 1. That the court erred in giving instructions not asked by the plaintiff. 2. That the general verdict is not sustained by sufficient evidence. 3. That the general verdict is contrary to law. But as the record does not show at whose instance any of the instructions were given, and there is no bill of exceptions containing the evidence, this court can not consider the two first grounds. The third ground will be considered in connection with other questions.
Various questions arising from both the pleadings and proceedings had at the trial are presented. But as no demurrer was filed in the court below, the inquiry as to the sufficiency of the pleadings must be confined to the objections that the petition does not state facts sufficient to constitute a cause of action, and the reply does not state facts sufficient to constitute a defense to the answer and set-off.
The first question to be determined is whether appellee can maintain this action at all, founded, as it is, upon the alleged
Appellants contend that this action being founded upon their alleged parol promise made to the preceding firms to pay the notes, rather than upon the note, the petition is fatally defective because it is not alleged there was a consideration for such promise. It is true no consideration is alleged in express terms, but it is attempted to be, and is imperfectly pleaded. It is stated substantially in the petition that the appellants are the successors of Davis, Storts & Co., and the first firm of Davis, Moody & Co., and as such agreed to pay their debts, including the two notes given to appellee. Appellants might have demurred in the courts below, but having failed to do so, and filed their answer and gone to trial, the defect of the petition on that account must be disregarded by this court if the issue was either made by the answer or submitted to and tried by the jury. “Where there is any defect, imperfection or omission, even of substance, in a pleading which would have been fatal on demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so imperfectly stated or omitted, and without which it is not to be presumed the judge would direct the jury to give, or the jury would have given the verdict, such defect or omission is cured by the verdict;” and it would be more than useless to send the case back from this court in order that the declaration should be amended by introducing that fact to be again presented for the consideration of the jury. Wilson v. Hunt’s Admr., 6 B. Mon. (Ky.) 379; Louisville & Portland Canal Co. v. Murphy, 9 Bush (Ky.) 522, quoting 1 Chitty on Pleadings 673. In their answer, though denying they agreed to pay either
It is contended that the action, being upon a promise to answer for the debt of another, is inhibited by Gen. Stat. (1881), Ch. 22, § 1. It is only where the promise is distinctly collateral that it is within the statute, and the party for whom the promise has been made must be liable to the party to whom it was made. The statute applies only to promises made to the person to whom another is amenable. 3 Parsons on Contracts (6th ed.), 21-27, and notes. That the statute of frauds applies only to promises made to the person to whom another is already or is to become responsible, and not to promises made to the debtor, on a sufficient consideration, may be regarded as conclusively settled both in England and in this country. North v. Robinson, 1 Duv. (Ky.) 71; Lucas v. Chamberlain, 8 B. Mon. (Ky.) 276; Hayden v. Christopher, 1 J. J. Marsh. (Ky.) 383. In this case the promise is made to the debtor, and not to the creditor, and is not a promise to answer for the debt of another in the meaning of the statute.
Appellants say that the reply contains no specific denial of the account pleaded by them as a set-off, and therefore judgment should have been rendered in their favor for the amount of it. Though the allegation of the answer in respect to the account is not traversed in the reply, a settlement of the account on the first of January, 1876, is alleged, and one of the questions submitted to the jury, to which they responded affirmatively in a special verdict, was whether there was such settlement.
As defenses to the note dated January 1, 1876, it is alleged in the answer: 1. That it is not the act and deed of the first firm of Davis, Moody & Co. 2. That it was executed by Wm. Davis, a member of that firm, without the knowledge or consent of the other members of the firm, and in pursuance of a fraudulent agreement between him, and appellee. 3. That it is without consideration.
It then appears the note was executed by a member of the firm, and the consideration of it was unpaid salary. The other facts, that it was given without the knowledge or consent of the other members, and that the salary paid for 1875 was thirty dollars, and no other member of the firm except Davis agreed to pay more, do not invalidate the note because they stand isolated and appear to have no bearing upon the simple question whether the firm was indebted to appellee in the amount for which the note was given. Certainly they cannot, unexplained and unaided, negative the other fact found by the jury, that the note was given for the balance of unpaid salary, nor countervail the logical deduction from that fact, that such balance was a just demand. Neither is the court authorized, as the record stands, to say, notwithstanding the verdict of the jury and judgment of the court below, the execution of the note was fraudulent.
But counsel for appellants contend that, it being fairly infer-able that the partnership was noncommercial, it is a question of fact, and not of law, whether one of the partners had the power to bind the firm, and that, according to the doctrine announced by this court in the case of Judge v. Braswell, 13 Bush (Ky.) 67, 26 Am. Rep. 185, it rested upon appellee to show either express authority in Davis to execute the note, or that such was the custom and usage of that particular branch of business in which the firm was engaged, or such facts as will warrant the conclusion the requisite authority had been given.
The general verdict does not appear to be inconsistent with the special verdicts, and we perceive no error in the refusal of the court to disturb it.
Wherefore the judgment is affirmed.