Cooper v. McKee

• Decision Date: 25 October 1905
• Citation: 89 S.W. 203,121 Ky. 287
• Parties: COOPER v. McKEE et al.
• Court: Kentucky Court of Appeals

89 S.W. 203

121 Ky. 287

COOPER v. McKEE et al.

Court of Appeals of Kentucky.

October 25, 1905

Appeal from Circuit Court, Trigg County.

"To be officially reported."

Action by K. R. McKee and another against J. E. Cooper and another. From a judgment for plaintiffs, defendant Cooper appeals. Affirmed.

Joe McCarroll and Denny P. Smith, for appellant.

Robert Crenshaw, for appellees.

HOBSON C.J.

K. R McKee and W. H. Poole, previous to July 23, 1903, were partners in a livery stable at Cadiz, Ky. On that day McKee sold out to Poole for $1,250, and took five notes, each for $250, payable in 6, 9, 12, 15, and 18 months, secured by a mortgage on the horses and vehicles in the livery stable. Poole did not pay his notes, and McKee on September 22, 1904 filed this suit against him and J. E. Cooper, to whom Poole had sold three of the mortgaged horses. The court enforced the mortgage, adjudging that Cooper took no title to the three horses sold him. Cooper was directed to deliver the horses to the court's commissioner, or, if the horses were not to be had, that he pay their value, which was fixed at $225 for all three of them. From this judgment, Cooper appeals.

It is insisted for him that the plaintiff's petition is insufficient. The petition is in these words: "The plaintiff, K. R. McKee, says that on the 23d day of July 1903, the defendant W. H.. Poole became indebted to him in the sum of $1,250, and executed to him his five several notes due in 6, 9, 12, 15, and 18 months, respectively, and simultaneously with the making of said debts, and in order to secure the plaintiff, the said W. H. Poole made and executed to him a mortgage on the following personal property: [Here follows description of property.] No part of said debts above have been paid," etc. This petition is bad on demurrer. When a writing is sued on, it must be set out in the pleading in its words, or according to its legal effect; that is, in a suit on a note it must be alleged that by the writing the defendant promised to pay the plaintiff a certain sum of money at a certain time, or the note must be copied in the petition, so that the petition on its face will show the contract relied on.

The allegation that the defendant became indebted is a mere conclusion of law. So is the allegation that the defendant executed a mortgage; for whether the paper was a mortgage or not is a question of law, to be determined from its terms. Regularly, either the mortgage should be copied in the petition or the effect of the instrument should be set up as in the case of a note. Creech v. Abner, 106 Ky. 239 50 S.W. 58, and cases cited. But no demurrer was filed to the petition, and Poole filed an answer, which cured all the defects in the petition. The answer of Cooper is also to the same effect. After judgment...