Posey v. Green

• Decision Date: 05 November 1879
• Citation: 78 Ky. 162
• Parties: Posey v. Green.
• Court: Kentucky Court of Appeals

78 Ky. 162

Posey v. Green.

Court of Appeals of Kentucky.

November 5, 1879.

APPEAL FROM HENDERSON COURT OF COMMON PLEAS.

MESSRS. VANCE & CLAY FOR APPELLANT.

W. LINDSAY FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This action was instituted by appellee against appellant upon a note for $3,940.89, secured by a lien on a house and lot in Henderson, Kentucky. Appellant answered, claiming that the note was entitled to a credit of $1,000, the purchase price of certain personal property sold by appellant to appellee, and setting up an agreement with appellee to that effect. To this answer appellee made reply in the following language:

"Plaintiff denies that such agreement was ever made or assented to by him, or that he, Green, made any further agreement than that the $1,000, the value of the personal property referred to, should be and become a credit on defendant's, Thos. Posey's, general indebtedness to him, Green. For the plaintiff alleges that said Posey owed him several other debts in addition to the note sued on, and by said Posey's express direction and request the said debts were to be extinguished by the use of the $1,000, referred to, before applying any part of said $1,000 as a credit on the note sued on." He further states that he cannot determine how much if any will remain to be credited on the note sued on; that a suit was then pending against him by F. W. Posey to recover the sum of $1,200, which he, Green, had assumed to pay for appellant, Thos. Posey, and that if he is compelled to pay that sum, nothing would remain to be credited on the note sued on. To this reply appellant did not rejoin and upon a trial on the merits, in which evidence was heard as to the amount of the indebtedness of appellant to appellee, and as to the nature of the claim of F. W. Posey, judgment was rendered in favor of appellee for the full amount of the note sued on, and for a sale of the house and lot, or so much of it as might be found necessary to pay the debt.

The first question is as to the sufficiency of the reply, and as to whether a rejoinder was necessary on the part of appellant.

Section 126 of the Civil Code requires that every material allegation of a pleading, not specifically traversed, must be taken as true; and section 134 provides, that "if the allegation of a pleading be so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment."

Section 92 is as follows: "A special demurrer is an objection to a pleading which shows —

"1. That the court has no jurisdiction of the defendant, or of the subject of the action; or,

"2. That the plaintiff has not legal capacity to sue; or,

"3. That another action is pending, in this state, between the same parties, for the same cause; or,

"4. That there is a defect of parties, plaintiff or defendant. Either of said grounds of objection, shown to exist by a pleading, is waived, unless distinctly specified by a demurrer thereto, except the objection to the jurisdiction of the court of the subject of the action, which objection is not waived by failing so to make it; but a party failing so to make it when or before he files a pleading, other than a demurrer, is liable for all costs resulting from such failure."

"SEC. 93. A general demurrer is an objection to a pleading, because it does not state facts sufficient to constitute a cause of action or a defense; or, because it does not state facts sufficient to support a cause of action or a defense."

The complaint here is that the reply does not specifically set forth in detail the nature of the general indebtedness referred to, and it is claimed for appellant that it was therefore unnecessary to traverse any of the allegations as to the agreement attempted to be set up by appellee. This will depend upon the question whether the allegations of the reply are material, and not as to whether they are defectively stated. If it appear from the reply that the facts imperfectly set up are material and would constitute a substantive defense if properly pleaded, we are of the opinion that appellant...