Akers v. Phillips

• Decision Date: 31 October 1900
• Citation: 58 S.W. 790
• Parties: AKERS v. PHILLIPS. [1]
• Court: Kentucky Court of Appeals

58 S.W. 790

AKERS v. PHILLIPS. ^[1]

Court of Appeals of Kentucky.

October 31, 1900

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Action by Lee Akers against H. H. Phillips and others on promissory notes. Judgment for defendant H. H. Phillips, and plaintiff appeals. Affirmed.

L. A Faurest and W. H. Marriott, for appellant.

J. P O'Meara, for appellee.

BURNAM J.

On the 9th of January, 1894, appellee, Hardin Phillips, J. Z Clemmons, and J. H. Mudd executed to appellant, Lee Akers their joint notes, as a part consideration for an engine and gristmill purchased from him. In January, 1899, appellant instituted this action against all of the obligors on the notes, for the balance alleged to be due thereon, and at the same time sued out an attachment against the defendant Phillips on the ground of nonresidency, and that he was about to remove his property, or a large part thereof, out of the state, not leaving enough to satisfy his claim; and the attachment was levied upon certain personal property of appellee. Appellee, Phillips, in his answer admitted the execution of the obligations sued on, but alleged that several years before the institution of the suit he and the defendant Mudd turned over the engine and gristmill to their co-defendant Clemmons, and that he had agreed to pay the balance due on said notes, and that appellant had ratified the agreement, and agreed to release appellee from further liability. He afterwards filed an amended answer, in which he alleged that Clemmons agreed to take the engine, and repair and run it, and that appellee believed that he could thereby better secure the payment of the balance due him, because Clemmons had both a distillery and sawmill, while the defendants had nothing to operate an engine with, except during the threshing season, and that he further understood that there was a disagreement between the obligors, and so long as this disagreement continued none of them would pay for the engine; that he relied on the assurance of appellee that he would be released, and paid no further attention to the property, and thereby lost his interest therein. All of the allegations were controverted by a reply, and the case tried out before a jury.

Appellant at the conclusion of the evidence for appellee, moved for a peremptory instruction, which was renewed at the conclusion of the whole evidence. But the court refused to give it, and in lieu thereof instructed the jury: "That if they believe from the preponderance of the evidence that the plaintiff, Akers, agreed with the defendant, Phillips, that he would release him from any further liability on the note sued on, and look to John Clemmons, one of the joint obligors thereon, for the payment thereof, in consideration that the engine for which the notes were...