Harbison v. Frazier

• Decision Date: 23 October 1901
• Citation: 64 S.W. 738
• Parties: HARBISON et al. v. FRAZIER. [1]
• Court: Kentucky Court of Appeals

64 S.W. 738

HARBISON et al. v. FRAZIER. ^[1]

Court of Appeals of Kentucky.

October 23, 1901

Appeal from circuit court, Letcher county.

"Not to be officially reported."

Action by Harbison & Gathright against James H. Frazier, on an account. Judgment for defendant, and plaintiffs appeal. Affirmed.

Randolph H. Blain, for appellants.

S. B. Dishman, for appellee.

HOBSON, J.

Appellants, Harbison & Gathright, on October 22, 1894, sold to appellee, James H. Frazier, a bill of goods amounting to $232.62, on 90 days' time. On June 21, 1898, they filed this suit to recover of him the amount. By his answer he alleged that he paid the debt on June 21, 1895. The case was submitted to a jury, who, under proper instructions, returned a verdict for the defendant. While the evidence is conflicting, we cannot say that the verdict is manifestly against the evidence. Appellee testified positively to the payment, and also testified that for two years after the money was paid he heard nothing of the claim. He was solvent, and no sufficient excuse is given for the long delay. His account of the loss of the receipt is a natural one, or at least not more out of the usual course than the long delay of appellants in asserting their claim. It is earnestly insisted for appellants that the proof showing that appellee did not pay the debt in money, but sent appellants by letter certain checks of his customers, the verdict cannot stand, for the reason that a check is not a legal tender, and does not operate prima facie as a payment. But if his testimony is true, as found by the jury, appellants did accept the checks in payment of the account. It is immaterial in what form the payment was made, if appellants accepted it as such. There is no proof that the checks were not good. The only question in the case is, were they sent by appellee and received by appellants? For it is unquestioned in the evidence that, if they received the checks at all, they accepted them in satisfaction of the debt.

Judgment affirmed.

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Notes:

^[1] Reported by Edward W. Hines. Esq., of the Frankfort bar, and formerly state reporter.

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