Bank of Taylorsville v. Hardesty

• Decision Date: 16 March 1906
• Citation: 91 S.W. 729
• Parties: BANK OF TAYLORSVILLE v. HARDESTY et al.
• Court: Kentucky Court of Appeals

91 S.W. 729

BANK OF TAYLORSVILLE v. HARDESTY et al.

Court of Appeals of Kentucky.

March 16, 1906

Appeal from Circuit Court, Spencer County.

"Not to be officially reported."

Action by the Bank of Taylorsville against G. C. Hardesty and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. W Ross and Reasor & Crume, for appellant.

Willis & Todd, for appellees.

NUNN J.

This appeal is from a judgment of the Spencer circuit court denying the appellant a recovery against the appellee on a note for $800.

On the 28th day of April, 1902, G. C. and J. B. Hardesty, as principals, and Wilson Tichenor, as their surety, executed a note for $800, payable to the appellant, and due six months after date. Wilson Tichenor died intestate on the 1st of August, 1902. Shortly thereafter, his widow, this appellee qualified as administratrix. The note referred to fell due on October 28, 1902. In the month of November, 1904, the appellant filed this action against the Hardestys and this appellee to recover the amount of the note. She pleaded that her intestate was only a surety on the note, and that by the conduct of the appellant the estate of her intestate had been released. She alleged that on the 1st day of November, 1902 she went to the bank, and inquired of the cashier whether her deceased husband's name appeared, as surety or otherwise upon any notes payable to the bank, and that the cashier answered her, "No, except upon a note of $50 due by one Speers." She then asked him the direct question if her husband's name appeared upon any note with G. C and J. B. Hardesty, and he answered, "No." She says that she was thus deceived by the cashier, and prevented from taking steps to indemnify and prevent loss to the estate by reason of this suretyship. She alleged that at that time, and until May, 1904, the Hardestys were solvent, and had more than $10,000 worth of property subject to execution, and after the note sued on fell due the Hardestys had on general deposit with appellant bank large sums of money more than sufficient to pay this claim on which her husband was surety, and it failed to apply this money to the payment thereof, but paid it out on orders or checks given by the Hardestys.

The proof shows that the cashier of the bank did on the 1st day of November, 1902, inform the appellee that her husband was not surety for any one to the bank except Speers, and at that time and until May, 1904, the Hardestys had property subject to execution greatly in excess of the amount of the note sued on. The proof shows that the Hardestys made an assignment for the benefit of their creditors in the spring of 1904, and about that time the appellee learned for the first time that her husband's name appeared as surety for the Hardestys upon this note. It also appears from the proof that in the month of November, 1902, the Hardestys placed upon deposit with the appellant bank at one time over $11,900, and after deducting the amount of overdrafts made by them upon the bank it left over $7,000 on general deposit to their credit, which was afterwards paid out by the...