Kendall's Ex'r v. Collier

• Decision Date: 10 May 1895
• Citation: 30 S.W. 1002,97 Ky. 446
• Parties: KENDALL'S EX'R v. COLLIER.
• Court: Kentucky Court of Appeals

30 S.W. 1002

97 Ky. 446

KENDALL'S EX'R v. COLLIER.

Court of Appeals of Kentucky.

May 10, 1895

Appeal from circuit court, Grant county.

"To be officially reported."

Action by D. C. Collier against H. C. Chinn, executor of T. R Kendall, on a promissory note and on an open account. From a judgment rendered on a verdict for plaintiff, and an overruling of a motion for a new trial, defendant appeals. Reversed.

Dickerson & Willis, for appellant.

A. G Dejarnett, for appellee.

EASTIN J.

This action was brought by appellee against appellant, H. C Chinn, as executor of the estate of T. R. Kendall, deceased on a promissory note purporting to have been executed by decedent for the sum of $500, and also on an open account for the sum of about $26, alleged to be owing from decedent at the time of his death, but against which appellee, in his petition, admitted a counter indebtedness on his part to appellant for the sum of about $36. For the purpose of this appeal, it is not necessary that we should notice these smaller items, and we shall treat the case as though it involved the claim of the $500 note alone. The answer of appellant denied that this note was executed by his testator, and charged that the signature to the paper, which was filed with the petition, was not the genuine signature of testator, and that the note sued on was not his act or deed. It further charged that appellee and testator had, a short time prior to the death of the latter, had a full and complete settlement of their accounts, which showed an indebtedness from appellee to decedent, and denied any indebtedness whatever from the estate of decedent to appellee. To this answer a reply was filed, putting in issue all its material allegations. On the main issue raised by the plea of "non est factum" as to the note, much proof was heard on both sides at the trial; and the case having been submitted to a jury, under instructions from the court, a verdict was returned by the jury sustaining the validity of the note sued on, and in these words, to wit: "We, the jury, find for the plaintiff the amount of the note sued on, five hundred dollars, with six per cent. interest thereon from the 17th day of February, 1891, until paid, less balance of $9.75, due the defendant, T. R. Kendall, on account." And a judgment in pursuance of said verdict was entered against appellant by the court below. Thereupon appellant filed a motion and grounds for a new trial, and, the same having been overruled, he excepted, prepared and presented his bill of exceptions, and prayed this appeal.

The grounds assigned in support of the motion for new trial are numerous, many of them being based upon alleged specific errors occurring at the trial, in addition to the general alleged ground that the verdict is palpably against the weight of the evidence. As to this general ground, it is sufficient for us to say that the evidence as to the genuineness of the signature in question is conflicting; that there was some competent evidence introduced on both sides of this question; and that it was the province of the jury to weigh and determine on which side the evidence preponderated. We shall therefore confine ourselves to a consideration of some of the alleged specific errors complained of, and, in the first place, as to the admission by the court below of evidence tending to show an existing indebtedness to appellee from appellant's testator, and showing admission of indebtedness on the part of the latter a short time previous to his death. In view of the fact that this case must go back to the lower court for a new trial on other grounds, and for the guidance of the court and the parties, we desire to say that we do not regard the admission of this testimony as error, under the circumstances of this case. While the main issue in the case is unquestionably as to the validity of the note sued on under the plea of "non est factum," yet all indebtedness of every kind is denied by the answer, and a full and final settlement between the parties is pleaded in the answer, and put in issue by the reply. This evidence was, in our opinion, properly admitted.

Then as to the testimony of the appellee himself, the court below must have recognized the fact that, by the provisions of subdivision 2 of section 606 of the Civil Code, he is expressly prohibited from testifying as to any transaction between himself and decedent, and yet a small portion of his testimony would seem to fall within the condemnation of that rule. It is perhaps true, as contended by counsel for appellee, that these facts are established by the testimony of other witnesses, and that, for this reason, appellant's substantial rights were not prejudiced by the admission of appellee's statements; yet, upon the...