116 Ky. 967 | Ky. Ct. App. | 1903
Opinion of the court by
— Affirming./
In the year 1894, tbe appellee, tbe United States Savings & Loan Company, which was a going concern, with its .bead office at St. Paul, Minn., instituted an action against .appellant to recover judgment against him on two notes— one for $500, and tbe other for $400 — and to enforce a
In the absence of a rejoinder, all of the well-pleaded allegations of fact in the reply are-to be taken as true; and, in the absence of evidence to support them, all of the allegations of payment and fraud in the answer which were controverted by the reply must be taken as untrue. The question, then, for adjudication, is whether or not the compromise made between the parties litigant, as set forth in the reply, can be upheld. There is a wide difference between- a compromise by which a debtor agrees to pay in settlement of his debt a less amount of usury than that claimed by the creditor, ¡where there is no dispute between the parties as to the usurious character of their contract, and a compromise by a debt- or of a contract which he claims contains usury, but the usurious nature of which the creditor in good faith disputes.
The crucial question in such matters is always whether there is in good faith a controversy between the parties. The line between these two classes of cases sometimes becomes exceedingly fine, but it is none the less real for that reason. In the case of Taylor v. Patrick, 1 Bibb, 168, it is said: “The compromise of a doubtful right is a good consideration to found a contract on, and it is immaterial on whose side the right ultimately turns out to be, as it must be on one side or the other, because there can be but one good right to the same piece of property.” In the case of Fisher v. May’s Heirs, 2 Bibb, 448, 5 Am. Dec., 626, in which one party undertook to dispute and uproot a settlement made with the other, for I’easons set forth, the court said: “This is certainly no ground for relief. There can be but one superior and equitable right. If, therefore, the solemn compromise of the parties about property of doubtful title is made to depend on the question whether the parties have so settled their dis
The admitted facts show- that, at the time the compromise under consideration was entered into, there was a bona fide
iThis court had made no ruling upon that question, and at that time the judicial utterance of the circuit court ¡was in favor of the contention of appellee. Subsequently this court has settled the question adversely to the contention of appellee, but this does not render nugatory the settlement between the parties. There is no more reason now to upset the settlement, in favor of appellant, because this court has finally decided adversely to the claim of the appellee, than there would have been to upset it in favor of the appellee, ¡so as to permit it to collect the full amount of the judgment originally rendered, if this court had adjudged the contract to have been a Minnesota contract, enforceable by the laws of this State. As has been well said, it does not matter upon iwhich side the right ultimately appears to have been, if at the time the settlement was made there was a bona fide controversy between the parties, about which lawyers and courts ¡might differ.
For these reasons, the judgment of the circuit court is affirmed.