Hale v. Grogan

• Decision Date: 15 April 1896
• Citation: 35 S.W. 282,99 Ky. 170
• Parties: HALE v. GROGAN.
• Court: Kentucky Court of Appeals

35 S.W. 282

99 Ky. 170

HALE v. GROGAN.

Court of Appeals of Kentucky.

April 15, 1896

Appeal from circuit court, Calloway county.

"To be officially reported."

Action by N. T. Hale against H. W. Grogan on a note. There was a judgment for defendant, and plaintiff appeals. Reversed.

Finton Sims, for appellant.

W. M Reed and W. M. Smith, for appellee.

LANDES J.

The action in the court below was upon two promissory notes, one of them executed by the appellee, and the other by him and James A. Grogan, his surety. Both notes were executed to the mercantile firm of Hale, Head & Co., of which firm the appellant was a member. The partnership having been dissolved, the assets of the firm were divided among the individual members, and in this way the appellant became the sole owner of these notes. James A. Grogan, the surety on one of the notes, was joined with the appellee as defendant in the action; but, before the answer was filed, on motion of the plaintiff, the action as to him was dismissed without prejudice. At the commencement of the action, an affidavit of the plaintiff was filed in the clerk's office, conforming substantially with section 153 of the Civil Code, and the plaintiff, having caused bond to be executed as required in such cases, sued out an order of arrest, which was issued by the clerk, and under which the appellee was arrested, who, in due course of procedure, was bailed, and released from custody. In his answer the appellee set up in detail a number of debts or claims which he avowed were due and owing by the appellant to James A. Grogan, the surety on one of the notes sued on, and several debts which he alleged the latter owed the appellant; and, without stating that there had been a settlement of accounts between the appellant and James A Grogan, or that there was an ascertained balance due from the former to the latter, alleged, by way of defense to the action, that "it was agreed between said parties, N. T Hale, J. A. Grogan, and H. W. Grogan, that said Hale was to apply the amount due J. A. Grogan, as shown, to the payment of these two notes herein sued on, and was to, and did then release said H. W. Grogan from the payment of said notes, or any part of them, and to look alone to J. A. Grogan for the payment of same, and that all parties mentioned then agreed to said arrangement, and said defendant was released therefrom." These allegations were specifically denied in the reply, and thus the only issue, or attempted issue, on the merits of the case was made up. But the appellee, without filing a separate affidavit, controverting the grounds for the order of arrest that were set up in the separate affidavit of appellant, controverted them in his answer, to which the appellant likewise replied. Appellant also, in his reply, controverted the statements of the answer by which appellee endeavored to show the of accounts between the appellant and James A. Grogan; and the record shows the remarkable fact that the only issues that were submitted to the jury were as to the state of accounts between the appellant and James A. Grogan, who was not a party to the action, while the jury was precluded, by the instructions of the court, against the objection of appellant's counsel from considering or passing upon any question concerning the alleged agreement that the appellant should look alone to James A. Grogan for the payment of the notes sued on, and to release the appellee from all obligation to pay them; and the jury were required, by the court, to respond, by special verdict, to certain questions growing out of the alleged transactions between the appellant and James A. Grogan, upon which special findings of the jury that court proceeded to settle their accounts, and having in this way ascertained that...