Kirchdorfer v. Heer

• Decision Date: 29 October 1920
• Citation: 225 S.W. 141,189 Ky. 442
• Parties: KIRCHDORFER v. HEER ET AL.
• Court: Kentucky Court of Appeals

225 S.W. 141

189 Ky. 442

KIRCHDORFER v. HEER ET AL.

Court of Appeals of Kentucky.

October 29, 1920

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by John Heer and another against John M. Kirchdorfer. Judgment for plaintiffs, and defendant appeals. Reversed with directions to dismiss petition.

Shackelford Miller and E. J. Cooney, both of Louisville, for appellant.

Gifford & Steinfeld, of Louisville, for appellees.

CLARKE J.

Heer Blasi, Nieder, and Kirchdorfer were sureties for the Nieder Hardward Company on a note for $2,350 to the Stockyards Bank of Louisville, Ky. due July 15, 1918. Before that date the hardware company became bankrupt, and the sureties were notified by the bank that they would have to take care of the note. Heer and Blasi were able to and did later settle the note. On the due date, July 15th, Heer, after making some arrangements with Blasi, had a conference with Nieder and Kirchdorfer, looking to their payment to him, or to him and Blasi, of their portions of the note. Nieder is the son-in-law of Heer, and at the conference with Kirchdorfer they represented to him that Nieder was insolvent and unable to pay his part of the note. Kirchdorfer, although probably solvent, was unable to pay his part at that time, but offered to assign to Heer, in satisfaction of his part of the note some stock he owned in the Lincoln Savings Bank & Trust Company, but which was up with the Stockyards Bank as collateral security for $265 he owed the bank. This stock he represented as being $1,000 worth of stock in the Lincoln Savings Bank & Trust Company, and he said in his judgment it was worth about $850. After some little controversy between Heer and Kirchdorfer as to whether the latter was liable for one-fourth or one-third of the $2,350 note, the following written agreement was executed and delivered to Heer by Kirchdorfer:

"July 15, 1918.

This agreement witnesseth that John M. Kirchdorfer does hereby agree to assign, set over, and transfer to John Heer all the stock now owned by him in the Lincoln Savings Bank & Trust Company, now pledged as security on a note executed by John M. Kirchdorfer to the Stockyards Bank of Louisville, Ky providing the said John Heer will pay the Stockyards Bank $265, the amount of the note upon which the Lincoln Bank stock is pledged, and release John M. Kirchdorfer of any and all liability on a certain note in the sum of $2,350, due July 15, 1918, executed to the Stockyards bank, and signed by the Nieder Hardware Company, Henry Nieder, Jr., John M. Kirchdorfer, John Heer, and Joseph Blasi.

John M. Kirchdorfer.

Accepted: John Heer.

Witnesses: Henry Nieder."

On the next day, July 16, 1918, in compliance with his undertaking in the above agreement, Heer paid the Stockyards Bank the $265 Kirchdorfer owed it and took up the Lincoln Savings Bank & Trust Company stock pledged as security therefor. On that same day Heer sold this stock for $600, and as he now claims credited the difference between the $265 he had paid for same and the $600 he received therefor, or $335, on Kirchdorfer's one-third part of the $2,350 note. He thereupon demanded of Kirchdorfer payment to him of the balance of one-third of the $2,350 note, less this credit of $335, or $448.33, which Kirchdorfer refused to pay. Thereafter Heer and Blasi instituted this action against Kirchdorfer for a cancellation of the written agreement of July 15, 1918, between Heer and Kirchdorfer upon the ground that the execution was procured by Kirchdorfer by falsely representing that the stock owned by him in the Lincoln Savings Bank & Trust Company consisted of 10 shares, of the par value of $100 each, when as a matter of fact it was only 5 shares of stock, of the par value of $100 each.

Kirchdorfer by his answer traversed the material allegations of the petition, and upon a trial of the issue thus formed plaintiffs recovered of him a judgment of $448.33, with interest and costs. Seeking a reversal of this judgment, Kirchdorfer filed a motion in the court for an appeal.

Kirchdorfer bought 10 shares of the Lincoln Saving Bank, of the par value of $100 each, paying therefor $1,000, when the bank was organized in 1911, and this stock he soon thereafter assigned to the Stockyards Bank as security for a loan of $500, which at the time of...