Simons v. Douglas' Ex'r

• Decision Date: 23 November 1920
• Citation: 225 S.W. 721,189 Ky. 644
• Parties: SIMONS v. DOUGLAS' EX'R.
• Court: Kentucky Court of Appeals

225 S.W. 721

189 Ky. 644

SIMONS v. DOUGLAS' EX'R.

Court of Appeals of Kentucky.

November 23, 1920

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

Action by the Louisville Trust Company, as executor of the will of J. J. Douglas, deceased, against L. Simons. From judgment for plaintiff, defendant appeals. Affirmed.

Gifford & Steinfeld, of Louisville, for appellant.

Peter Tabb & Levi, of Louisville, for appellee.

HURT J.

This action at law by the Louisville Trust Company, as executor of the will of J. J. Douglas, deceased, against the appellant, L. Simons was for the recovery of the amounts of two negotiable promissory notes, less the credits indorsed thereon, which the appellant executed and delivered to the decedent on December 15, 1913, and by which the appellant obligated himself to pay to decedent the sum of one of the notes one year after its date, and by the other to pay to him the sum of the other note two years after its date. The appellant filed an answer, and thereafter offered and filed two amendments thereto. The appellee to the answer as amended interposed a general demurrer, which was sustained, and, the appellant declining to plead further, a judgment was rendered against him for the amounts of the notes, less the credits thereon, respectively, and from the judgment the appellant has appealed. Hence the only question for determination is whether the facts averred by the answer as amended constitute a defense to the cause of action declared upon in the petition.

(a) The averments of the answer as amended were, in substance, that the notes sued on had before suit brought been fully paid and satisfied in the following way: At the time of the execution and delivery of the notes, and prior thereto, the appellant and decedent were partners under the style and name of L. Simons & Co., in which partnership each owned an equal interest. The partnership had ceased to do the business in which it had been engaged prior to the execution of the notes, but the affairs of the partnership had not been adjusted and settled between the partners, and at the time of the execution and delivery of the notes the partnership was the owner of a large number of notes and accounts, choses in action, by and because of which various persons were indebted in various sums to it, and at that time it was agreed between appellant and decedent that decedent would take the notes and accounts which were owing to the partnership and would collect them and account to appellant for his interest therein by crediting the notes sued on with "the sum so becoming due and owing" to appellant from decedent "by reason of such collections," and that decedent did collect from such notes and accounts a sum unknown to appellant, but which he "believes and therefore alleges" amounted to the sum of $6,000, and that by reason of such collections the appellant was entitled to receive from decedent at least $3,000, "to be applied by reason of the agreement" as a credit upon the notes sued on, and that the payment of the notes "was made solely by the collection of the notes and accounts due the partnership of L. Simon & Co."

It will be observed that each of the notes sued on contained an unconditional and explicit promise to pay to decedent the amount of the note at a stated time, and the place of the payment was fixed by the terms of the note at the German Bank, in the city of Louisville. The amounts specified in the notes to be paid were expressed in the denomination of dollars and cents, and when a debt is agreed to be paid in that way, and in the absence of an agreement expressed or implied for its payment in some other way, it means a payment in money, and not a payment by the delivery of property, or the transfer of notes or the delivery of checks, or through the medium of an accord and satisfaction. Borderland v Nevada Bank, 99 Cal. 89, 33 P. 737, 37 Am. St. Rep. 32; Mansfield v. Dawson, 42 W.Va. 794, 26 S.E. 527, 57 Am. St. Rep. 884; Chaflin v. Continental Jersey Works, 85 Ga. 27, 11 S.E. 721; Clay v. Lakenan, 101 Mo.App. 563, 74 S.W. 391. This, of course, does not mean that a debt may not be paid otherwise than with money. If the parties at the time the debt is created agree that its payment may be made in some way other than by the delivery of money, it may be paid in the manner agreed upon, or if, after the creation of a debt, the obligee agrees to accept something other than money as payment and the obligor delivers the property or other thing agreed upon in payment, it will constitute a valid payment. Cleveland v. Rothschild, 132 Mich. 625, 94 N.W. 184; Blair v. Carpenter, 75 Mich. 167, 42 N.W. 790; Huffmans v. Walker, 26 Grat. (Va.) 314; Bantz v. Basnett, 12 W.Va. 772; Borderland v. Nevada Bank, supra. A contract between the obligor and the obligee after the creation of a debt, which according to the original contract was to be paid in money, to give and accept something other than money in satisfaction of the debt, when the latter contract has not been performed, to make it enforceable would have to be supported by some consideration. The contract here relied upon, however, is not one entered into subsequent to the execution of the notes and followed by performance, but is a parol agreement entered into contemporaneously with the execution and delivery of the writing constituting the memorial of the contract sued upon. There is no pretense or claim that the notes sued upon do not purport to express the entire contract between appellant and decedent, or that the contract as stated in the writing is in such incomplete terms as to make parol evidence necessary to render it intelligible; but an examination of the notes demonstrates that they purport to contain an entire contract, and the terms used appear to make the intention of the parties perfectly intelligible. Under such circumstances, evidence of prior or contemporaneous parol agreements that vary, alter, or contradict the terms of the writing is not admissible, unless the party complaining of the terms of the writing alleges that the terms of the contract as written and executed are different from the terms of the actual contract which was intended to be entered into, and that the execution of it as written was either caused by the fraud of his adversary, by mistake upon his part and fraud on the part of his adversary, or by the mutual mistake of both; and such allegations would necessarily have to be made to show a good defense to an action upon the writing, when the defense is that the contract is other than expressed in writing. Dale v. Pope, 4 Litt. 166; Citizens' Bank v. Millett, 103 Ky. 1, 44 S.W. 366, 44 L. R. A. 664, 82 Am. St. Rep. 546; Ward v. Jones, 11 Ky. Law Rep. 273; Curran v. Askin, 7 Ky. Law Rep. 367; McCoun's Adm'r v. Jennings, 2 Ky. Law Rep. 315; Moore v. Parker, 15 Ky. Law Rep. 125; Bowers v. Linn, 14 Ky. Law Rep. 889; Williams v. Beazley, 3 J. J. Marsh. 577; Garten v. Chandler, 2 Bibb. 246; McKegney v. Wedekind, 6 Bush, 107; Kreitz v. Gallinger, 170 Ky. 16, 185 Ky. 132; Fairbanks, Morse & Co. v. Manning, 164 Ky. 478, 175 S.W. 1000; Castleman, Blakemore v. Pickrill, 163 Ky. 750, 174 S.W. 749; Tross v. Bill's Executrix, 189 Ky. 115, 224 S.W. 660. Allegations in support of the truth of which no evidence is admissible, could not constitute a defense to an action. Appellant, without any allegation that the notes do not contain the entire contract between him and decedent, or that they do not fully express the terms of the contract entered into between them resulting in the debts, and the contract as to the time, place, and method of their payment, offers in defense of a recovery upon them a parol agreement between him and decedent contemporaneous with their execution, to the effect that although the writing provides for their payment, in money, at a designated place and time, they were to be paid by the delivery to...