Newton v. Carson
| Decision Date | 01 June 1882 |
| Citation | 4 Ky.L.Rptr. 1,80 Ky. 309 |
| Parties | Newton v. Carson. |
| Court | Kentucky Court of Appeals |
Appellee was surety for W. R. Covington on a note to appellant, and agreed with appellant that if he would not sue on the note appellee would, during the term of court then in session, confess judgment to save him expense and costs. Appellant delayed his suit for more than twenty days upon the agreement, and finally appellee refused to confess judgment.
1. Held --that the time that appellant was delayed by the fraud of appellee is to be excluded from the time pleaded by him as surety under the statute for his release.
2. The agreement falls within the rule that where a benefit results to the promisor, or where any loss or inconvenience is sustained by the promisee at the instance of the promisor the latter is bound to perform the agreement, whether the consideration is or is not sufficient, provided the contract be otherwise legal.
3. The court should have permitted appellant to file his amended reply.
APPEAL FROM WARREN COMMON PLEAS COURT.
JOHN M PORTER AND E. W. HINES FOR APPELLANT.
1. The court erred in refusing to permit appellant to file his amended reply.
2. The statements made by appellee to appellant, and especially his promise to confess judgment upon the note in controversy during the term of court then in session, were fraudulent and given with the view of putting appellant off his guard, so that the statute should operate to release appellee as surety. The case of Kennedy v. Foster, 14 Bush, 479, is not in point. The period during which appellant was delayed by the fraud of appellee should be deducted from the time pleaded. (5 Bush, 579; Newman on Pl. & Pr., 715; Kennedy v. Foster, 14 Bush, 479; Bigelow on Fraud, 444; Dent v. McGrath, 3 Bush, 176; Warren v. Barker, 2 Duv., 156; Gill v. Carter, 6 J. J. M., 485; 13 Mich. 124.)
HALSELL & MITCHELL FOR APPELLEE.
1. It is clear that appellant, by his own negligence, failed to cause the summons to issue until five days after the full period of seven years had elapsed.
2. The demurrer being general, was properly overruled.
3. The amended reply was properly rejected. (Gen. Stat., chap. 77, art. 6, sec. 4; Walker v. Sayeres, 5 Bush, 579; Kennedy v. Foster, 14 Bush, 479; Trabue v. Sayre, Ib., 129; Williams v. Rogers, 14 Ib., 776.)
The appellant filed his petition the 26th of October, 1876, on a note which W. R. Covington, as principal, and the appellee, Carson, and another, as surety, executed to him on the 3d day of June, 1869, and due six months after date, for the sum of $1,500. The evidence tends to prove that about the time the petition was filed, the appellee, Carson, went to his principal and told him that they had better confess judgment on the note, and also agreed with the appellant, if he would not sue on the note, and save him any further cost, he would, during the term of the common pleas court, which was in session when the petition was filed, confess judgment therefor. The appellant communicated this agreement to his attorneys, and one of them informed appellee Carson of the fact, who said it was all right.
Consequently, and in pursuance of the agreement, no process was issued on the petition, but the appellee, protracting, through feigned excuses, the disclosure of his intention not to confess judgment until the last day of the term, when, for the first time, he made known his purpose to disregard the agreement which he initiated, and apparently with good faith had entered into with the appellant, whose assent thereto was thus obtained by the appellee.
Process was thereafter issued on the 11th day of December, 1876, seven days after the expiration of seven years from the time the note became due.
The appellee pleaded that he was only surety, and relied upon the statute of limitation of seven years in bar of the action.
The parties, by inartificial pleading, joined issue upon the facts above stated, which...
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