Martyn v. Jacoby's Administrator

• Decision Date: 20 March 1928
• Citation: 223 Ky. 674
• Parties: Martyn, et al. v. Jacoby's Administrator, et al.
• Court: United States State Supreme Court — District of Kentucky

223 Ky. 674

Martyn, et al. v. Jacoby's Administrator, et al.

Court of Appeals of Kentucky.

Decided March 20, 1928.

1. Evidence. — Where plaintiff's intestate, as surety for defendant on sale bond, paid amount thereof in administrator's action to recover amount paid, testimony of defendant's witnesses that intestate had stated in their presence defendant did not owe him money, and had owed him some money, but paid it, though uncontradicted, need not be accepted, where intestate's statements as related were vague and indefinite and were not inconsistent with existence of debt.

2. Appeal and Error. — Where plaintiff's intestate, as surety on defendant's judicial sale bond, paid bond, and administrator brought action to recover amount thereof, the Court of Appeals cannot disturb judgment on circuit court's finding of fact that plea of payment was not proved, where on consideration of facts and circumstances there was doubt as to truth of matter.

Appeal from Bourbon Circuit Court.

TALBOTT & WHITLEY for appellants.

DENIS DUNDON for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

E.J. Martyn purchased property in Paris, Ky., on March 26, 1923, at a judicial sale and J.L. Jacoby became his surety on two sale bonds due in six and twelve months. Martyn failed to pay the bond first maturing, and Jacoby paid $1,600 thereon. Martyn paid the other bond and deed was made to him. Jacoby died in 1926, and his administrator filed suit against Martyn to recover the sum of $1,600, with interest from the date of payment of the bond by Jacoby. Martyn admitted the indebtedness, but asserted payment thereof to Jacoby, giving the dates and amounts of the several payments alleged to have been made in 1924 and 1925.

The administrator controverted the plea of payment and proof was taken by both parties. The circuit court rendered judgment for the administrator of Jacoby, and Martyn has prosecuted this appeal.

The appellants insist that the finding of the chancellor is contrary to the evidence. The issue in the case was whether the obligation had been paid, and the burden of proof was admittedly upon appellant. He could not testify for himself as to any transactions with the decedent; and he relied upon the testimony of two witnesses to sustain his claim that the debt had been paid. Louise January, a colored woman, testified that, on one of her frequent visits to his house on business with the housekeeper, Mr. Jacoby inquired of her how Ed Martyn was getting along now. She asked him if Ed owed him, to which he answered in the negative. The time was fixed as in July or August, 1925. Frank Morrow, a colored boy, 18 years old, testified that he drove an automobile for Jacoby from 1922, and on one of the occasions in the latter part of the summer of 1925 when they were out driving they passed Ed Martyn, whereupon Jacoby asked how Martyn was getting along in his business, and was told all right, when Jacoby remarked: "Yes, I think he must be, because he owed me some money, and has paid it back."

In connection with the testimony of these witnesses appellant relies upon...