McAfee v. Mercer Nat. Bank

• Decision Date: 25 September 1907
• Citation: 104 S.W. 287
• Parties: MCAFEE v. MERCER NAT. BANK.
• Court: Kentucky Court of Appeals

104 S.W. 287

MCAFEE v. MERCER NAT. BANK.

Court of Appeals of Kentucky.

September 25, 1907

Appeal from Circuit Court, Mercer County.

"Not to be officially reported."

Action by the Mercer National Bank against Ed McAfee on promissory notes. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

E. H Gaither, for appellant.

B. F Roach, for appellee.

CARROLL J.

The Cincinnati Stamping Company, through its agent, W. H. Hurt sold to appellant 150 security safes, at $11 each, and the right to sell the safes in Franklin county, Ky. and appellant executed two notes of $300 each, payable to Hurt and negotiable at the appellee bank. Before maturity, the notes were discounted by the bank, and it brought suit on them and recovered judgment for the full amount. In his answer appellant averred that the notes were executed as the purchase price of the territory, in which he was given the exclusive right to sell safes; that they were what is known as "peddler's notes," and, not being so indorsed, were void; and, further, that the notes were obtained by fraud and misrepresentation. Appellant, who was the only material witness that testified, said that he purchased from one W. H. Hurt, a nonresident of the state the right to sell kitchen cabinets in Franklin county, Ky. and for this privilege he executed to Hurt the note sued on; that, after the verbal contract was made relating to the right to sell the cabinets in the territory mentioned, Hurt sent a written contract and the notes by another person to him, and he signed the contract and notes at the same time. The writing signed by appellant purports to be a contract made between him and the Cincinnati Stamping Company of Cincinnati, Ohio, by W. H. Hurt, its agent, and contained an agreement on the part of the stamping company to manufacture and furnish appellant safes at the price of $11 each. It also gave appellant the exclusive right to sell the safes in the county of Franklin, and recited that he purchased 150 of them, and paid the sum of $600, which was $4 cash on the price of each safe, leaving due a balance of $7 on each safe that he ordered. Afterwards, he did order and receive from the stamping company five safes, for which he paid it $35. In brief, the issue made by the pleadings and tried out between the parties was this: Appellee contended that the notes were executed as part of the purchase price of the safes, whilst appellant's position was that they were given for the exclusive right to sell in Franklin county.

Appellant insists that as the...