104 Ky. 719 | Ky. Ct. App. | 1898
delivered the opixtox oe the court.
Tbe petition herein alleges that in 1893 the appellee Wilfred Carioo, as executor of B. F. Dougherty, sold to Jerome Hayden a certain lot in the city of Owensboro, the eonsidei’ation being.$5,000, of which sum $1,000 was paid cash, and notes of $800 each were executed for the balance; that in November, 1895, Hayden and wife sold, and by deed conveyed, to appellant. Mudd, a one-half undivided interest in the property, the consideration for the purchase, among other things, being “that the said Mudd assume and pay to tin* plaintiff one-half of the aforesaid
It is insisted by counsel for appellant that, taking the petition most strongly against the pleader, the averment quoted above means a promise to plaintiff to pay the notes of Hayden, and this, not being alleged to be in writing, was within the statute of frauds, and no recovery could be had thereon. Conceding that the petition states that the promise was made by appellant to appellee, and was yet the consideration of the lot deeded by Hayden to appellant, it was not within the statute of frauds. It was an undertaking by appellant to pay off his OAvn obligation. Jennings v. Crider, 2 Bush, 322 [92 Am. Dec., 487]; Hodgkins v. Jackson, 7 Bush, 342; and the recent case of Daniels v. Gibson, 20 Ky. Law Rep., 847 [47 S. W., 621],
The demurrer to the answer was properly sustained, as