105 Ky. 443 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opinion of the court.
These two appeals involve the determination of the same points. They are from judgments rendered in suits
First, because the judgment as rendered is against R. W. Slack, to the payment of which Ms individual property
It is the next contention of appellants that the petition in neither case sufficiently avers an agreement or promise to pay. The petition alleges that R. W. Slack, agent of the Rudd estate, accepted in writing, and promised and agreed to pay, the bill in question, and that before the maturity thereof it was sold, discounted, and indorsed to the plaintiff by John Murphy, in the usual course of business. It avers an express promise to- pay by Slack, and the allegation “that it was sold, discounted, and indorsed to the plaintiff by Murphy” amounts to- an averment that he signed and delivered the bill.
The third ground relied on is that the petition, does not state facts sufficient to support a cause of action, and that it fails to refer to the act of plaintiff’s incorporation, as required by subsection 2 of section 119 of the Civil Code. This defense is not made or relied on in the answer of either of the defendants, and the question can not be raised by general demurrer.
It is also insisted by appellants that the court erred in sustaining a demurrer to their answers to plaintiff’s amended petition. We can not concur in this contention. By their original answer, the appellants allege that the plaintiff had exact information as to the amount of usury contained in the obligation sued on, and asked that it be re
The last ground of complaint relied on by appellant Murphy is that the notice of protest was not sufficiently definite to identify the note protested. It is not necessary for a notice to give all the essential parts of the paper dishonored, or to describe it in every respect accurately. The rule, stated generally, may be said to be that “a notice is sufficient if, on the whole, it so designates or distinguishes the paper as to leave no reasonable doubt in the mind of the party notified what paper was intended.” See 4 Am. & Eng. Enc. Law, 417, and authorities there cited. The requirements of the law are considered as satisfied by any description which, under all the circumstances of the case, so designates the bill or note as to leave no doubt in the mind of the party, as a reasonable man, what bill or note was intended. (See Daniel on Negotiable Inst., Sec. 974.) Chitty on Bills, 290, says: “There are two requisites to a good notice, viz., a description of the bill, and an intimation that it has been dishonored.” In Mills v. Bank of The United States, 11 Wheat, 437, the court says: “The
Rehearing
RESPONSE TO PETITION EOB REHEARING
In their petition for rehearing appellants insist that this court failed to pass upon the questions of law raised by their general demurrer, and they contend that this demurrer should have been sustained, on the ground that the petition of appellee was fatally defective, in that it failed to properly allege that the indorsers on the bills sued on had been given due notice of their nonpayment at the maturity thereof by the payor; and for the additional reason that the petition of plaintiff failed to plead its charter, as required by subsection 2, section 119 of the Civil Code.
\Ye think it is only necessary, by way of response to the first ground on which the petition for rehearing is based, to call the attention of the appellants to the second paragraph of plaintiff’s petition, in which it alleges “that at the maturity of said bill plaintiff caused same to be presented for payment at the place where same was payable,
As to the second ground of complaint, — that the demurrer should have been sustained because the petition fails to plead plaintiff’s charter, as required by subsection 2, section 119, of the Civil Code — it was stated in the original opinion that this question could not be raised by general demurrer. If a plaintiff has not legal capacity to sue, the Code provides that the question shall be raised by special demurrer or answer (see section 92, Civil Code); and, as the right of appellee to maintain this action was not in issue by the pleadings in either mode pointed out by the Code, the question must be considered as waived by appellants. In the recent case of Nichols v. Bardwell Lodge, 20 Ky. Law Rep., 1236 [48 S. YY, 1091], this court, after carefully considering this provision of the Code in connection with the provisions of the statutes which requires the several courts of the State to take judicial notice of the acts of the General Assembly, and after reviewing all the adjudications of the courts thereunder, said “that, where private statutes were put in issue, this