179 Ky. 113 | Ky. Ct. App. | 1918
Response to Pettion for Rehearing by
—Withdrawing affirmance and reversing judgment against Southern National Life Realty Corporation.
Although we held the trial court erroneously sustained a demurrer to the third paragraph of the separate answer of appellant, Southern National Life Realty Corporation, the judgment against it was affirmed in the opinion rendered November 27, 1917, reported in 178 Ky. 80, upon the theory that the error was not prejudicial, and this upon the assumption that the jury had determined, upon the issues submitted to it under the first and second paragraphs of the answer, that the corporation was the principal and not a surety upon the note sued on. In assuming this fact as proven, we were guilty of a palpable error, as the verdict of the jury may have resulted from evidence, none of which was brought up' on appeal, that this defendant was a surety and not the principal, but was nevertheless liable, because it had the authority to bind itself as surety and empowered its president to
As we are unable to say whether the jury found this defendant to be the principal or a surety only upon the note and this fact was in fssue on- the pleadings, it is apparent that we were wrong in our conclusion that the error in sustaining the demurrer to the third paragraph of the answer was not prejudicial. Ky. Central R. Co. v. Fox, 10 Ky. L. R. 399; McCauley v. Elrod, 14 Ky. L. R. 524; Manier v. Meyers, 4 B. Mon. 514; Field v. Dealey, 10 B. Mon. 4; Union Pac. R. Co. v. Field, 137 Fed. 14.
Wherefore, so much of the opinion .rendered herein as affirmed the judgment against the Southern National Life Realty Corporation is withdrawn and the judgment is reversed.