Barnes v. Kennedy

• Decision Date: 28 September 1951
• Citation: 242 S.W.2d 616
• Parties: BARNES v. KENNEDY.
• Court: United States State Supreme Court — District of Kentucky

Page 616

242 S.W.2d 616

BARNES v. KENNEDY.

Court of Appeals of Kentucky.

Sept. 28, 1951.

Fritz Krueger, Somerset, for appellant.

H. C. Kennedy, Somerset, for appellee.

SIMS, Justice.

J. M. Kennedy recovered judgment against George A. Barnes on five notes aggregating $750, with interest on four of the notes from Dec. 13, 1922, and on the other note from Sept. 4, 1933. In seeking to reverse the judgment Barnes insists that the court erred: (1) In not sustaining his plea of limitation; (2) in refusing to sustain his plea that the notes were not listed for taxation during each of the years plaintiff owned them; (3) in directing a verdict in favor of plaintiff.

On Dec. 13, 1922, Barnes executed his four promissory notes to Stokes & Shearer for $100 each, due respectively in 5, 8, 11 and 14 months after date. On Dec. 21, 1926, the payees for a valuable consideration assigned these four notes to Kennedy. Barnes executed to the Middlesboro Banking Company his note for $350 on June 5, 1932, due 6 months from date, which note Kennedy signed as accommodation endorser. Barnes failed to pay this note at maturity and on Sept. 4, 1933, Kennedy satisfied it and the note was endorsed to him without recourse by the bank. This note bore 6% interest from maturity and the four $100 notes bore the same rate of interest from date.

Kennedy instituted this action against Barnes on all five of these notes on Jan 17, 1949. His petition as amended averred 'that after the assignment of said notes to him as aforesaid, and within less than 15 years after the execution and delivery of said notes, and less than 15 years before the filing of this action the defendant did in the city of Somerset, Kentucky, acknowledge to the plaintiff that each of said notes was just, due and unpaid, and thereupon promised the plaintiff that if the plaintiff would give him a little more time he would pay each of said notes with interest; that the plaintiff agreed to extend time for payment for a short while; but that the defendant did not within a little time, or a short time, or at all, pay any of said notes or interest thereon, and that the defendant now fails and refuses so to do.'

Barnes' general demurrer to the petition was overruled and his answer was a plea of limitation, followed by an averment that Kennedy had failed to list the notes for taxation and KRS 132.300 bars his action on them. The reply as amended denied the notes were barred by limitation and further denied they were not listed for taxation and Kennedy averred he had listed and paid taxes on the notes from 1939 to 1949.

Kennedy testified clearly and unequivocally that in September 1934, while he was attending the September term of court in Somerset as Commonwealth Attorney, Barnes told him the notes represented just debts and he would pay them if Kennedy would give him a little additional time, as he was then beginning to make some money. Defendant did not take the stand, nor did he introduce any testimony in his behalf, and plaintiff's testimony stands uncontradicted.

Here, all five notes were transferred to Kennedy by the payees after maturity, hence they were not placed on the footing of a bill of exchange and the 15 year statute of limitation applied. KRS 413.090. Kennedy v. Kennedy, 197 Ky. 784, 248 S.W. 182. The notes were not barred at the time the new...