Rogers v. Rogers' Adm'r

• Decision Date: 28 October 1921
• Citation: 234 S.W. 278,192 Ky. 649
• Parties: ROGERS v. ROGERS' ADM'R.
• Court: Kentucky Court of Appeals

234 S.W. 278

192 Ky. 649

ROGERS v. ROGERS' ADM'R.

Court of Appeals of Kentucky.

October 28, 1921

Appeal from Circuit Court, Nicholas County.

Action by S. P. Rogers, administrator of the estate of Josephine Rogers, deceased, against James P. Rogers. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Holmes & Ross, of Carlisle, and J. C. Dedman, of Cynthiana, for appellant.

Conley & McCartney, of Carlisle, Robert Buckler, of Mt. Olivet, and Jno. P. McCartney, of Flemingsburg, for appellee.

TURNER C.

In March, 1918, Mrs. Josephine Rogers died, with her residence in Nicholas county, and the appellee, S. P. Rogers, shortly thereafter qualified as administrator of her estate. Among her papers were found five past-due notes executed by appellant, James P. Rogers. Some of these notes were payable directly to the decedent, and some of them appear to have been assigned to her because paid by her as the surety of her son, James P. Rogers.

This is an action by the administrator against James P. Rogers on each of those notes, and, in addition, there is asserted in a separate paragraph a claim against the defendant for $1,045.36, alleged to have been paid out of the funds of the decedent for James P. Rogers in settlement of a note of his to a Carlisle bank on the 2d day of March, 1918, a short time before the death of Mrs. Rogers.

Each of the notes sued on was long past due prior to the 28th of January, 1918, and the answer alleges as to these notes that prior to that time defendant and the decedent had many business transactions with each other, and on that date they had a full and complete settlement of all business transactions had between them up to and including that date and that in such settlement it was found and determined that defendant was indebted to the said Josephine Rogers in the sum of $83, for which said sum defendant at the time gave her his check, and she accepted the same and collected thereon the said $83 in full settlement of the balance found to be due her.

The reply controverted this allegation and on the trial it was shown by the evidence of two witnesses that on or about the 28th or 29th of January, 1918, defendant had given to his mother a check for $83 on a Millersburg bank, and that there was written in the face of that check the words, "In full settlement to date." One of the witnesses so testifying was a brother of the decedent, at whose home she was staying at that time, and he testified in substance that about that time his sister, Mrs. Rogers, gave to him two checks to be deposited in her bank at Carlisle, and that one of these checks was the check of appellant, payable to her for $83, and had on its face, in substance, "In full settlement to date."

The evidence of the cashier of the Millersburg bank shows that the check was paid on the 31st day of January, 1918, and came to his bank through the Carlisle bank. The evidence of the defendant shows that he has made a diligent search for that check, and has been unable to find it, and this fact is shown in addition by the cashier of the Millersburg bank.

In addition to this evidence about what appeared on the face of that check, there is the evidence of one of Mrs. Rogers' daughters, a sister of both appellant and appellee, that she had a conversation with her mother about Christmas time 1917, which was only a few weeks before this check was given wherein her mother said to her, in substance that some of the children were complaining, and thought that Jimmy was getting everything that she had, but they were much mistaken, that Jimmy owed her only about $100, a little more or a little less.

Her brother further testified that after he had deposited the two checks for Mrs. Rogers, and when he handed back her passbook to her, she said if everybody was like Jimmy she would have no trouble; that he always paid her everything he got from her, and did not owe her anything, but what he paid her.

The court in its first instruction, peremptorily instructed the jury to find for the plaintiff on four of these notes; one of the five notes having been found to be...