Goodloe v. Anderson
| Decision Date | 18 November 1938 |
| Citation | 275 Ky. 460 |
| Parties | Goodloe v. Anderson. |
| Court | United States State Supreme Court — District of Kentucky |
2. Principal and Surety. — In payee's action on note against surety, an oral notice by surety to payee that surety would not further renew the note sued on or be responsible therefor because of violation of an alleged agreement between surety and payee was without effect (Ky. Stats., sec. 4668).
3. Principal and Surety. — In payee's action against surety on note which surety had signed on payee's statement that maker's indebtedness to surety should be a claim against maker's property prior to that of payee, wherein surety defended on ground that payee secretly made loans to maker and took a mortgage on maker's realty in violation of the agreement between surety and payee, and record of a proceeding for settlement of deceased maker's estate, which was made a part of surety's pleadings, showed that mortgage was executed prior to the note, the existence of the mortgage could not have affected surety's rights and hence no defense was established.
4. Estoppel. — In payee's action against surety on note, surety could not attack sale of maker's land to payee's attorney as being fraudulent where record of proceedings for settlement of deceased maker's estate, which constituted a part of surety's pleadings, showed that surety was a party defendant in the action for sale of the land, participated in the proceedings, and made no objection to confirmation of the sale.
5. Pleading. — In payee's action against surety on note, record of proceedings for settlement of deceased maker's estate, which was made part of surety's answer and counterclaim and filed as an exhibit, was required to be considered in connection with the answer and counterclaim as though copied in full therein.
6. Pleading. — When an exhibit contradicts a pleading, the exhibit is controlling.
7. Estoppel. — In payee's action against surety on note which surety had signed in reliance on payee's alleged agreement that maker's indebtedness to surety should be a claim against maker's property prior to that of payee, where record of proceedings for settlement of deceased maker's estate, which was made a part of surety's pleading, showed that surety was a party to such proceeding and acquiesced in sale of maker's realty to payee's attorney, surety was precluded from any recovery on alleged counterclaim based on payee's breach of agreement in having made further loans to maker and having secretly taken a mortgage on maker's realty.
8. Estoppel. — Where matters of estoppel plainly appeared on the face of the pleadings, a demurrer was the proper proceeding and estoppel was not required to be especially pleaded.
Appeal from Madison Circuit Court.
CARL EVERSOLE for appellant.
JOHN NOLAND for appellee.
Affirming.
Appellee, A.M. Anderson, as Receiver for the Citizen's National Bank of Richmond, Kentucky, brought this suit in the Madison circuit court in May, 1937, to recover of appellant on a note for $2,000 executed by J.D. Goodloe, now deceased, as principal, with appellant as surety. The note was subject to a credit of $742.79 paid out of the proceeds of the personal property of J.D. Goodloe, deceased, upon the settlement of his personal estate.
Appellant filed his answer and counterclaim admitting the execution of the note as surety for J.D. Goodloe but pleaded as a defense to appellee's right of recovery, that prior to the execution of the note by his brother, J.D. Goodloe, he and J.D. Goodboe were carrying their separate bank accounts with the Madison Southern National Bank and Trust Company of Richmond, and about a year prior to the execution of the original note herein sued on, same having been executed in the year 1928, and while J.D. Goodloe was doing business with the Madison Southern National Bank, appellant signed and executed a note as surety for J.D. Goodloe to the Madison Southern National Bank in the sum of $2,950, which was subject to certain credits reducing same to the sum of approximately $2,500 when the estate of J.D. Goodloe, deceased, was settled; that the note sued on is a renewal note and that some time before the execution of the original note in 1928, J.D. Goodloe desired to transfer his banking business from the Madison Southern National Bank & Trust Company to the Citizens National Bank, appellee, but before making the transfer of his banking business to the appellee, it, appellee, required J.D. Goodloe to pay any indebtedness he then owed to the Madison Southern National Bank, and in order to enable J.D. Goodloe to make the desired change in his banking affairs, appellant paid the $2,500 note which J.D. Goodloe owed the Madison Southern National Bank and on which appellant was surety, all of which was at the request and with the knowledge of appellee and immediately upon the payment of the note he notified appellee and its officials that he had paid the note and that J.D. Goodloe was then indebted to him in the sum of that note; that at the time he paid the note to the Madison Southern National Bank, J.D. Goodloe then owned real estate situated in Madison County, Kentucky, worth the sum of $30,000, subject to a Federal Land Bank mortgage of about $20,000, and his land was well worth over the existing liabilities of J.D. Goodloe at that time; that soon after J.D. Goodloe transferred his business from the Madison Southern National Bank to appellee, he, J.D. Goodloe, was desirous of obtaining a loan of $2,000 from appellee and appellee informed appellant that it would loan J.D. Goodloe the sum of $2,000 if appellant would sign the note as surety; that he conversed with the officials of appellee bank concerning priority of the balance of $2,500, owed him by J.D. Goodloe which appellant paid to the Madison Southern National Bank, and it was agreed between him and the officials of appellee at that time that in the event appellant signed the $2,000 note as surety for J.D. Goodloe, that appellant was to have a prior claim to appellee upon the real and personal estate of J.D. Goodloe for said sums and that as result of this agreement and relying upon the statements of the agents and officials of appellee he was induced and persuaded to sign as surety the $2,000 note sued on.
He further stated that shortly after he signed the $2,000 note as surety, in violation of the agreements and understanding he had with the officials and agents of appellee as stated above, appellee by its officials and agents, against the will and without the consent and knowledge of appellant and for the purpose of cheating and defrauding him, did wrongfully, fraudulently and secretly from time to time loan J.D. Goodloe various sums of money aggregating the sum of $9,047.48 and to secure the payment of which it procured J.D. Goodloe to execute to it a second mortgage upon his farm in Madison county, which farm at that time had a Federal Land Bank mortgage against it in the sum stated above; that appellee, contrary to its agreement and understanding with him, failed to protect him in any way or manner by failing to incorporate in said...
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