Owsley v. Philips

• Decision Date: 13 June 1880
• Parties: Owsley v. Philips.
• Court: Kentucky Court of Appeals

78 Ky. 517

Owsley v. Philips.

Court of Appeals of Kentucky.

June 13, 1880.

APPEAL FROM LINCOLN COMMON PLEAS COURT.

M. H. OWSLEY AND T. P. HILL FOR APPELLANT.

R. M. & W. O. BRADLEY AND HOPPER FOR APPELLEE.

JNO. M. PHILLIPS FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

This action was instituted in the Lincoln common pleas court by the appellee, L. V. Philips, against H. P. Middleton and J. S. Owsley on the following note:

                "$2,150.61.              LANCASTER, Oct. 8th, 1866
                

"Sixty days after date we promise to pay to the order of L. V. Philips twenty-one hundred and fifty dollars and sixty-one cents, value received, negotiable and payable at the National Bank of Lancaster, Ky.

                                                  "H. P. MIDDLETON
                                                  "J. S. OWSLEY."
                

The appellant Owsley filed a plea of non est factum, and upon that issue the case went to the jury. It was shown from the testimony that the name of Owsley was signed by Middleton as the surety of the latter to the note in controversy, and his authority to sign the name of the appellant being questioned, the appellee introduced proof conducing to show that Owsley, after the signing of his name to the note by Middleton, ratified that act by promising to pay the debt. It is shown by the statement of young Philips that, at the instance of his father, he saw the appellant, and was told by the latter to say to his father not to sue on the note, but to wait until Middleton's estate was wound up (the estate being insolvent), and he would pay whatever balance might remain unpaid. This statement is corroborated by the testimony of a brother of the witness, that the appellant had with him a like conversation. These conversations Owsley denies.

At the conclusion of the testimony the court, on the motion of the appellee, instructed the jury, "that although the defendant Middleton signed the name of J. S. Owsley to the note without his authority so to do, yet, if they believe, from the evidence, the defendant Owsley thereafter ratified the same, or recognized it as his act and deed, they will find for the plaintiff." An exception was taken to the instruction as given, and a verdict having been rendered for the plaintiff (appellee), the appellant prosecutes an appeal to this court.

It is not pretended that the appellant received any part of the money for which the note was executed, but his liability as the surety only is attempted to be maintained on two grounds: 1st. That he authorized the principal obligor, Middleton, to sign his name as the surety; and 2d. If no such authority was given, he became liable by the promise to pay made after the execution of the note; that this was a ratification of the void and wrongful act of Middleton. As the law existed prior to the adoption of the General Statutes, an authority by the appellant to Middleton, although verbal, to sign his name to the note as surety, was binding upon him, and upon that fact being established, his liability is unquestioned.

The only question necessary to be considered arises on the instruction by which the appellant is made liable as the surety, on the ground that he ratified the fraudulent act of Middleton by his agreement to pay the debt. The proof fails to show that Middleton had any general authority to sign the name of the appellee, either as principal or surety, to such obligations, and there is no evidence conducing to show that Owsley obtained any part of the money, or was in any manner deriving a benefit from the execution of the...