109 Ky. 616 | Ky. Ct. App. | 1901
Opinion- op the court by
Affirming.
Appellants sued appellees as executors of A. G. Doherty, declaring upon the following promissory note: “$850.00. On the 10th day of March, 1898, I promise to pay to the order of C. C. and Bettie R. Smith eight hundred and fifty dollars, for value received in borrowed money, bearing interest at the rate of six per" cent, from date until paid. This March 10, 1896. A. G. Doherty.’’ Appellees, by their answer, interposed the pleas of non est factum and no consideration. A motion to compel them to elect between these two pleas was made, but overruled by the court. That action is one of the grounds urged here for reversal. On the trial the jury "found for appellees that “they believed the note sued on was without consideration, and therefore they found for defendants.” During the' trial, evidence was admitted by the court, over appellants’ objections, as to the financial condition of the testator, A. G. Doherty, and of the appellants at the time of the alleged loan. It being a circumstance of value to the jury as to whether appellants had, or probably had, as much as $850 at the date of the supposed loan, appellant Bettie R. Smith offered herself as a witness to prove that on March 10, 1896, her husband started to Bowling Green, and took from its hiding place at their home $850 in currency, which belonged to both appellants, and took it with him. This testimony was excluded by the trial court. In instructing the jury the
Section 113, of subd. 4, Civ. Code Prac., provides: “If, however, a party file a pleading which contains inconsistent statements, or statements inconsistent with those of a pleading previously filed by him in' the action, he shall, upon or without motion, be required to elect which of them shall be stricken from his pleading,” etc. It is argued by appellants that the pleas of non est factum and no consideration are inconsistent, because, they say, the first plea says the testator did not sign the paper; the second one admits that he signed it, but says, in avoidance, notwithstanding such signature, it is without consideration. This is an apparent conflict, but whether it is such inconsistence as was contemplated in the enactment of the section, supra, of the Code, requires us to look to the causes for its enactment, and the construction given similar provisions in other States, the exact question here presented never having been determined by this court. On this subject the rule may be stated in the following language: “Two or more pleas may be made if all may be shown to be true, and are inconsistent only when the proving of one necessarily disproves the other.” Says Judge Bliss, in his work on Code Pleading (2d Ed., section 343): -'This view assumes that defenses áre inconsistent only when one in fact contradicts the other, and has nothing to do with a seeming and logical inconsistency which arises merely from a denial and a plea in con
2. As to the admission of the evidence showing the financial condition of appellees testator and appellants at the time of the alleged loan, which evidence was to show that the appellee was a prosperous farmer, owning two valuable farms worth over $10,000; also county bonds and notes for loaned money, aggregating between $3,000 and $4,000; and that plaintiffs were people in very moderate circumstances, the male appellant being a carpenter, and working for his daily living; that they had but little property, worth altogether not more than $300 or $400, — were all circumstances that should have been permitted to go to the jury to enable them to test the probability of the truthfulness of the. petition and the pleas of the defense. This court, in Bland v. Gaither (Ky.), (11 S. W., 423), admitted similar evidence for the purpose, as the court said, of tending “to show the object, of the contract, and the probability that it had been made.” In James v. Hayden’s Adm’r, 10 Ky. Law Rep., 537, before the superior court, similar evidence was, upon the same plea, held admissible. In Andrews v. Hayden's Adm’r, 88 Ky., 460, (11 S. W., 430), the court, by. Judge Pryor, said: “The appellee’s testator was a man of means, and in a condition, as this record shows, to become a lender,
3. Under section 606 of the Civil Code of Practice, husband and wife ^ may either testify for the other in any action which might have been brought by the wife alone when unmarried. This action might have been brought by the wife, if unmarried, and therefore she was a competent witness, and, as to the testimony it was avowed she would give, to-wit, on the day of the transaction with testator her husband took $850 of their money from its hiding place in their dwelling when he started to town, this would have been competent, we think; but, in view of the facts that were before the jury, we do not believe it would have been material enough to have altered their finding, or to have justified a different conclusion on their part. We therefore hold that the failure to allow the testimony in this case was not prejudicial.
4. As to the second instruction given by the trial court, requiring the jury to find not only that the note was executed by the decedent, but that it was executed in consideration of the money borrowed by him of plaintiff, as expressed therein. In Cutter v. Reynolds, 8 B. Mon., 597, which was an action on a writing, in which writing a consideration was expressed, the court held: “It is true that under our statute raising unsealed to the dignity of sealed instruments, an agreement in writing imports a consideration. But we are of the opinion the agreement in question has a consideration expressed upon its face.