105 Ky. 219 | Ky. Ct. App. | 1899
delivered tiie opinion .of the court.
Appellant brought suit against appellees, Day, Green-wade, and Collinsworth, upon a note dated December 8, 1880, for $183, at 90 days. Greenwade filed an answer, pleading non est factum. Appellant filed an amended petition, to which a demurrer was sustained; and appellant declining to plead further, or to offer proof, its petition
The point made in the trial court upon the demurrer appears to have been that the amendment was a departure from the original cause of action, that ground being-set up in the demurrer. By the amendment, appellant averred that “the note sued on is a renewal of a debt owing the plaintiff, which was evidenced by the note of all the defendants, which they signed and delivered to plaintiff, by which they promised to pay plaintiff $250, upon which defendants have made payments sufficient to reduce it to the amount sued for; and the note sued upon, which is a renewal evidence of said debt, was accepted by plaintiff, not knowing that the signature of Thomas Greenwade to said note was not genuine. Upon said renewal, plaintiff delivered said original note to some one of the defendants, and therefore can not file it. ' Wherefore plaintiff prays judgment for the debt, interests, and costs named in the petition.” This amendment is not a departure from the original petition, for it seeks a recovery upon the same indebtedness upon which recovery was sought in the original petition, but relies, not upon the note set up in the petition, but upon the prior indebtedness, in renewal of which that note purported to be executed. It is somewhat analogous to a new assignment at common law. Buch pleading, in cases where a plea of non est factum has been interposed to a renewal note, has been repeatedly sanctioned by this court; and while the amendment in question is inartistically drawn, and it may be subject to a motion to make more specific and definite, it appears to us sufficiently to confess the plea of non est factum, and to seek recovery upon the balance of the indebtedness to renew which the note set up in the petition was given.