Rohrman v. Bonser

• Decision Date: 11 February 1914
• Citation: 157 Ky. 397,163 S.W. 193
• Parties: ROHRMAN et al. v. BONSER.
• Court: Kentucky Court of Appeals

163 S.W. 193

157 Ky. 397

ROHRMAN et al. v. BONSER.

Court of Appeals of Kentucky.

February 11, 1914

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

Action by Robert J. Bonser against John Rohrman and others. From a judgment sustaining a demurrer to the answer defendants appeal. Reversed and remanded, with directions.

O'Neal & O'Neal, and Tyler Barnett, all of Louisville, for appellants.

Henry J. Tilford, of Louisville, for appellee.

TURNER J.

In April, 1911, appellee Bonser had an open account against the Globe Furniture Company; appellants Rohrman and Tross were officers of and stockholders in that company. On the 12th of April, 1911, the Globe Furniture Company, together with appellees Rohrman and Tross, sureties, executed to Bonser five notes in the settlement of his claim against the Globe Furniture Company; the amount of the claim being divided into five equal parts, and the notes made payable 30 days apart with a provision in the face thereof that upon the failure to pay any one of the notes at maturity they should all become due. The notes due in June and July, 1911, were not paid, and on the 2d day of August, 1911, this action was instituted to recover judgment upon the four unpaid notes.

In their answer and amended answers it is alleged, in substance by appellants that their signatures to the notes in question were procured by fraud and misrepresentation in the following manner, to wit: That one Herbert, the agent of the plaintiff fraudulently represented to them that the claim against the Globe Furniture Company was long past due, and that unless same was immediately paid or secured, suit would be filed thereon, and that H. E. Bills, another officer of and stockholder in the Globe Furniture Company, had agreed to sign the notes jointly with the defendants if they each would; that these representations by plaintiff's agent were false, and that defendants relying upon the same, executed the notes as sureties of the Globe Furniture Company; that the representation of Bonser's agent that the claim against the Globe Furniture Company was past due was false, and in fact the same was not then due, and did not become due until August, 1911; that the representation that Bills had agreed to sign said notes as joint surety with the defendants was false, and that said Bills had previously refused to do so, and thereafter refused; that the notes were not to be delivered until the same had been executed by said Bills, and therefore there was no valid delivery of them. The answer as amended is made a counterclaim against defendant, and it is alleged that at the time of the execution of the notes and filing of the answer Bills was amply solvent, and financially able to meet his proportion of the obligation.

The only questions presented are whether or not the allegations of the answer presented (1)...