Tinly v. Martin, &C.
| Decision Date | 21 October 1882 |
| Citation | 80 Ky. 463 |
| Court | Kentucky Court of Appeals |
| Parties | Tinly v. Martin, &c. |
APPEAL FROM KENTON CHANCERY COURT.
JOHN F. & C. H. FISK FOR APPELLANT.
CLEARY, HAMILTON & CLEARY FOR HIDECKER & CO. AND APPELLEE BUSSE.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
Martin and Busse were sub-contractors under Smith, the latter having undertaken to build for Tinly a house. The two sub-contractors (Martin and Busse) having performed labor and furnished materials for the building, gave notice of their purpose to assert a lien under the mechanics' lien law. An interview was had by all the parties and their attorneys for the purpose of adjusting the trouble in regard to the lien, and it was then agreed that Smith, the contractor, should take a note held by Tinly on one McLaughlin for eight hundred and twenty-five dollars, to be assigned by Tinly to Smith, and by the latter to Martin, as the appellant contends, and as the appellees insist, was held by Martin for both himself and Busse, and that this fact was known by Tinly.
Tinly did assign the note to Smith on the 27th of June, 1874, agreeing in the assignment to be bound to Smith or his assigns in the event, after the exercise of the proper diligence by suit, the money was not made on the McLaughlin note. Smith at the same time, or on the same day, assigned the McLaughlin note to Martin by the ordinary indorsement upon it. Some time after the assignment made by Smith to Martin of the McLaughlin note Martin assigned a part of the note to Busse. McLaughlin went into bankruptcy, and the assignee Martin failing to make the money on the note, Tinly became liable by reason of the assignment.
After the insolvency of McLaughlin, the appellant Tinly ascertained that Hidecker & Co. held a note on Martin for $870, with interest, and Martin being insolvent, Tinly proposed to Hidecker & Co. to assign him the note they held on Martin that he might use it as a set-off against Martin's claim upon him by reason of the assignment of the McLaughlin note. After consulting with his attorneys, and being advised that he could use the note of Martin to Hidecker & Co. as a set-off, he, Tinly, agreed with Hidecker & Co. that, as far as he could make the note suit his purposes in that way, he would give him fifty cents to the dollar; and upon this agreement the note was assigned him on Martin. After the note was assigned, Tinly instituted his ordinary action upon it against Martin, to which Martin filed his answer, alleging that Tinly was not the real owner, and also pleading as a set-off the liability of Tinly to him by reason of the note assigned on McLaughlin.
Busse came into the case by petition and answer, insisting that a portion of the McLaughlin note had been assigned to him by Martin, and that Tinly had full, knowledge of the fact that it was intended for his benefit as well as Martin's, at the time Smith made the assignment to Martin.
Tinly alleges that he had no such knowledge, and was without any notice of Busse's claim to any part of the note until after he had made the contract with Hidecker & Co., and obtained the assignment of the note they held on Martin. Hidecker & Co. came into the case, alleging that they only loaned the Martin note to Tinly, to be returned on demand; that they demanded the note, and ...
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