Campbell County Bank v. Schmitt
| Decision Date | 07 March 1911 |
| Citation | 135 S.W. 274,142 Ky. 601 |
| Parties | CAMPBELL COUNTY BANK v. SCHMITT. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
Action by the Campbell County Bank against Frank Schmitt. From a judgment sustaining a demurrer to the first and second paragraphs of the reply, plaintiff appeals. Reversed and remanded.
Otto Wolff, for appellant.
Aubrey Barbour, for appellee.
On November 7, 1908, appellee, Frank Schmitt, executed and delivered to Walter Forster a certain promissory note negotiable and payable at the Campbell County Bank, Bellevue Ky. whereby he agreed and promised to pay, 90 days thereafter, to the order of said Forster, $400. Forster indorsed and discounted the note at said bank, receiving therefor the sum of $400. On February 5th appellee, Schmitt, renewed said note by executing a new note for $400, payable in 90 days. This renewal note was also discounted by the bank. On May 5 1909, the note was again renewed for a period of 30 days. Nothing was paid on the note, except the interest thereon, up to June 5, 1909. Appellee, Frank Schmitt, owned a certain piece of real estate in the city of Dayton, Campbell county Ky. On February 2, 1909, he conveyed this property to his wife, Elizabeth Schmitt. On July 15, 1909, appellant Campbell County Bank, brought this action to recover on the note in question, and to have the conveyance from appellee, Frank Schmitt, to his wife set aside on the ground that it was made for the sole purpose of cheating, defrauding, hindering, and delaying his creditors, and chiefly appellant. At the same time an order of attachment was asked and secured. Appellee, Frank Schmitt, and Elizabeth Schmitt answered in two paragraphs. In the first paragraph they denied that the transfer of the property referred to in the petition was made without consideration, or for the purpose of cheating, defrauding, hindering, or delaying Frank Schmitt's creditors. In the second paragraph they pleaded that the original note, as well as the renewals thereof, were executed to Walter Forster in payment of certain bets and wagers between Frank Schmitt and Forster, Hauser & Co. which were lost by appellee upon the future rise and fall in the price of grains and stocks, made during a period of several months next prior to the execution of the original note which bets and wagers were determined and settlements thereof made according to the difference in each case, less commissions charged by said Forster, Hauser & Co., between the contract price at the time of the deal and the market price at the date of delivery of the property, which property, however, was not delivered nor intended by any of the parties thereto to be delivered; that, at the time of the execution of said note, said Walter Forster, together with Albert Hauser and other persons unknown to appellee, were engaged under the name of Forster, Hauser & Co. in the business of gaming, speculating, and wagering for money upon the fluctuations in prices of grain, provisions, and stocks, none of which were intended to be actually sold or delivered by any of the...
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