Phillip's Ex'r v. Reid

• Decision Date: 27 April 1937
• Citation: 104 S.W.2d 1093,268 Ky. 317
• Parties: PHILLIPS' EX'R v. REID.
• Court: Kentucky Court of Appeals

104 S.W.2d 1093

268 Ky. 317

PHILLIPS' EX'R v. REID.

Court of Appeals of Kentucky

April 27, 1937

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Leonard H. Tyler, executor of the will of John Phillips against Roy Reid. From a judgment for defendant on trial by the court, plaintiff appeals.

Reversed and remanded.

Gilbert Burnett and Henry Bedinger, both of Louisville, for appellant.

V. I Cartwright and Frank Fairleigh, both of Louisville, for appellee.

CREAL Commissioner.

Leonard H. Tyler, executor of the will of John Phillips, deceased instituted this action against Roy Reid alleging that on or about February 26, 1930, John Phillips lent the defendant the sum of $2,000 which the latter agreed to pay on demand with interest from such date; that no part of the principal or interest thereon had been paid and he prayed judgment accordingly.

By his original answer defendant made a general denial of the allegations of the petition, but by amended answer alleged that on or about March 1, 1930, he executed his promissory note to plaintiff's decedent for the sum of $2,000, such note being executed and delivered as evidence of the loan of $2,000 claimed in the petition; that on or about the maturity of the note decedent discharged him of any and all liability thereon and canceled the note by surrendering same to him under his promise and agreement to execute and deliver to Annie Phillips, wife of decedent, a new note for like amount, dated as of the maturity of the former note and payable ___ days from date; that in accordance with such promise and agreement he did execute and deliver to Annie Phillips a note as above indicated; that Annie Phillips is his mother, and since the execution of the note her husband had died, and as defendant was informed and believed, the note was in possession of his mother.

By reply plaintiff denied the allegations of the amended answer but later by amended petition alleged that on or about February 26, 1930, decedent lent Roy Reid the sum of $2,000 and thereafter and on or about March 1, 1930, as evidencing such indebtedness, the defendant executed and delivered to John Phillips a promissory note for such sum with interest from date until paid; that none of the principal of the note or any interest thereon had ever been paid; that the note never came into the hands of the executor but was in the possession of the defendant and his attorney and the existence of the note and the possession of same by defendant and his attorney was not known and was not discovered by plaintiff until April, 1935, and he called upon defendant to produce and file same with his answer.

By answer to the amended petition defendant admitted the execution of the note evidencing the indebtedness as alleged in the amended petition, but denied that the note was payable 12 months after date with interest from date until paid, and denied that the note or any part thereof had not been paid. He admitted that the note never came into the hands of the executor, but denied that it was in his possession or in the possession of his attorney, and denied the existence of such note and alleged that he was unable to produce the note and that same was not in his possession or in the possession of his attorney because no such note existed.

By paragraph 2 of the answer, he alleged that on February 28, 1930, he executed a note to decedent in the sum of $2,000 payable four months after date with 7 per cent. interest thereon; that after the maturity of the note, decedent discharged him from any and all liability thereon and canceled same by surrendering the note to him upon his promise and agreement to execute and deliver to Annie Phillips a new note of like amount; that in accordance with such promise he did execute and deliver to Annie Phillips, wife of decedent, the new note as aforesaid and that such note was in the possession of Annie Phillips.

By reply plaintiff denied that the note executed by defendant to decedent was canceled and surrendered upon the promise and agreement alleged in the amended answer and denied that defendant executed and delivered to Annie Phillips the note as alleged therein.

By a second amended petition plaintiff withdrew all allegations of the first amended petition with reference to the execution and delivery of the note by defendant to decedent and reiterated and adopted the allegations of his original petition; and by amended reply specifically denied the allegations of the amended answer with reference to the execution and delivery of the $2,000 note by defendant to decedent and the surrender and satisfaction of that note by the execution and delivery of a note to decedent's wife for like amount.

The cause was submitted to the court without the intervention of a jury and it was adjudged that plaintiff recover nothing by his petition and that defendant recover his costs....