Coleman v. Coleman

• Decision Date: 02 February 1911
• Parties: Coleman v. Coleman.
• Court: Kentucky Court of Appeals

Page 36

142 Ky. 36

Coleman v. Coleman.

Court of Appeals of Kentucky.

Decided February 2, 1911.

Appeal from Mercer Circuit Court.

E. H. GAITHER for appellant.

ROBERT HARDING and THOMAS HARDIN for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

Appellant sued appellee upon four notes; the cause of action as to each being set out in a separate paragraph. The first paragraph declares upon a note of $1,081.82 executed by appellee to appellant and secured by mortgage on the personal property of the former. The second paragraph declares upon a note of $100 which appellee executed to appellant's father, J. W. Taylor. It is alleged therein that after the death of her father she paid the note to his administrator out of her distributable share of her father's estate; that she paid the note at appellee's request and upon his promise to repay her the amount thereof; and that when she paid it to the administrator he assigned and delivered it to her.

The third paragraph seeks a recovery upon a note of $500 which appellee and his sureties, T. C. Coleman, and J. W. Taylor, executed to W. M. Hall. This note it is alleged was paid by J. W. Taylor, one of the sureties, to Hall at its maturity; and after the death of J. W. Taylor, appellant, at appellee's request, and upon his promise to repay her the amount thereof, paid the note to the administrator of her father's estate out of her distributable share thereof, and the note was thereupon assigned and delivered to her by the administrator.

By the fourth paragraph recovery was sought of the amount of a $500 note, which appellee executed to appellant's father, J. W. Taylor, and this note she also paid the administrator out of her share of her father's estate and by its assignment and delivery to her by the administrator, the note became her property. It is alleged in this paragraph that appellant paid the last-named note at appellee's request and because of his promise to repay it to her. The maturity and non-payment of each of the notes are appropriately alleged; and also other promises on the part of appellee made since their assignment and delivery to appellant to pay her the three smaller notes. The pleadings show, and it is admitted, that at the time appellee became indebted to appellant upon the several obligations sued on they were husband and wife, but that they were later divorced.

Appellee by an answer, containing nine paragraphs, resists a recovery as to each note on the ground that when the first was executed and he became indebted to appellant upon the others they were husband and wife, which, it is alleged, prevented either of them from becoming indebted to the other and rendered void the several obligations as well as any subsequent promise he may have made to pay appellant any of them. The answer also pleaded failure of consideration as to the first note and the statute of limitations as to the other three.

The appellant filed a demurrer to the answer and each paragraph thereof, which the circuit court overruled as to so much of the answer and its several paragraphs as pleaded the former coverture of the parties; holding that the facts alleged therein as to that matter would bar a recovery as to each and all of the notes. But no ruling seems to have been made by the court on the demurrer as to the other parts of the answer.

Appellant, standing upon the demurrer has appealed. The judgment appealed from reads as follows:

"The court not being clearly satisfied that the Married Woman's Act of 1894, empowers a married woman to contract with her husband as with a stranger, overrules the dem...