McCormick Harvesting Mach. Co. v. Martin

• Decision Date: 17 June 1899
• Citation: 51 S.W. 1021
• Parties: McCORMICK HARVESTING MACH. CO. v. MARTIN et al. [1]
• Court: Kentucky Court of Appeals

51 S.W. 1021

McCORMICK HARVESTING MACH. CO. v. MARTIN et al. ^[1]

Court of Appeals of Kentucky.

June 17, 1899

"Not to be officially reported."

Opinion modified on its face, and judgment affirmed.

DU RELLE, J.

Appellant brought suit against appellees upon their note for $630, upon which were credits amounting to nearly $200. In their answer and counterclaim, appellees pleaded--First, a special plea of non est factum, alleging that the words, "This note is secured by the book acct. notes transferred and assigned this day as collateral security," were not in the note when it was executed and delivered, and were inserted in the face thereof after its execution and delivery, without the knowledge or consent of either of them; second, that the note was given as evidence of a full settlement as of its date and that at the same time, in full accord and satisfaction thereof, they assigned and transferred notes and accounts aggregating in face value $1,002.63, of which at least $850 were at that time good and collectible, and that appellant agreed to collect them, and apply the proceeds in discharge of the indebtedness of $630, and to return whatever notes and accounts remained uncollected after the discharge of such indebtedness, but that appellant did not collect, or use any diligence to collect, the greater part of such notes and accounts, and that by reason of such failure appellees had been damaged in the sum of $200. A demurrer to the first paragraph was sustained. Appellant replied to the second paragraph of the answer and counterclaim, denying the accord and satisfaction, or that it had received the notes or accounts in satisfaction of the note or any part thereof. It further pleaded that the assignment indorsed upon the notes and accounts was, through mistake, made as in part payment but that they were only assigned as collateral security denied that $850 of them were collectible; denied that it had not used diligence in collecting the notes and accounts; and averred that it had used diligence, had given credit for all the sums collected, and that none of the uncollected ones "are collectible by law." In their rejoinder appellees denied the affirmative averments of the reply, and again pleaded the alteration averred in the answer. The surrejoinder put in issue the alleged alteration. After a jury had been sworn, the appellant moved to set aside the swearing, and transfer the cause to equity. The...