Snowden v. Snowden

• Decision Date: 26 October 1906
• Parties: SNOWDEN v. SNOWDEN.
• Court: Kentucky Court of Appeals

96 S.W. 922

SNOWDEN v. SNOWDEN.

Court of Appeals of Kentucky.

October 26, 1906

Appeal from Circuit Court, Clark County.

"Not to be officially reported."

Action by D. J. Snowden against J. H. Snowden. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. M Stevenson, for appellant.

Leland Hathaway, for appellee.

CARROLL C.

In an action against him by appellee on a promissory note, the appellant filed the following answer and set-off: "The defendant (now appellant), J. H. Snowden, says that the plaintiff (now appellee), is indebted to him in the sum of $275, amount due for labor and services rendered plaintiff by defendant at his (plaintiff's) instance and request. Defendant files herewith as part hereof, marked No. 1, an account showing the character of the services performed, the dates thereof and the prices charged therefor, and says that all of said prices are reasonable and that there is due on said account the amount aforesaid. (2) The defendant further says that the plaintiff is further indebted to him in the sum of $100, for boarding and caring for plaintiff and his family from the 1st of August, 1904, to November 4, 1904; that defendant boarded and cared for plaintiff and his family during said time, at the special instance and request of plaintiff, and that the charges made therefor is reasonable and the same is due and unpaid." Exhibit No. 1, filed with the foregoing answer and set-off sets out in separate and distinct items the character of service rendered, the price charged for each particular item of service, and the year in which it was rendered. A demurrer was entered and sustained to each paragraph of this pleading, and the only question before us on this appeal, is the sufficiency of this set-off.

For convenience we will dispose of each paragraph separately. The Civ. Code Prac. § 96, defines a set-off as a cause of action arising upon a contract in favor of a defendant against a plaintiff, and it must contain all the necessary requisites of a petition. If the averments in the set-off would not be sufficient to constitute a good cause of action in a petition, they would not be sufficient in a pleading designated a set-off. Exhibit No. 1, is by appropriate language made a part of paragraph 1, and must be considered as if it were set out in full in the body of the paragraph. Section 120 of the Civil Code of Practice provides that "If an action, counterclaim, set-off, or cross-petition be founded on a note, bond, bill, or other writing as evidence of indebtedness, it must be filed as a part of the pleading if in the power of the party to produce it; and if not filed, the reason for the failure must be stated in the pleading; if upon an account, a copy thereof must be filed with the pleading." It is not essential to the sufficiency of a pleading that an exhibit, like an open account, shall be set out in the body of the pleading if it is made a part of it and filed with it as an exhibit. It will be observed that the Code makes a distinction between writings that are evidences of indebtedness, and accounts. It has been held that a petition founded on a writing which merely refers to it without setting out its terms is bad...