Thomas v. Bedford

• Decision Date: 30 September 1899
• Citation: 52 S.W. 1118
• Parties: THOMAS v. BEDFORD.
• Court: Kentucky Court of Appeals

52 S.W. 1118

THOMAS v. BEDFORD.

Court of Appeals of Kentucky.

September 30, 1899

Appeal from circuit court, Nelson county. "Not to be officially reported." Action by T. D. Bedford against C. T. Thomas for the cancellation of a note. Judgment for plaintiff, and defendant appeals. Reversed.

C. T Atkinson, for appellant.

Morgan Yewell, for appellee.

BURNAM J.

Appellee executed and delivered to appellant his promissory note which reads as follows: "Two years after date I promise to pay C. T. Thomas one hundred and fifty dollars. This is a settlement between me and Dr. Thomas, the compromise between us in the difference on the land notes. Chaplain, Ky. Dec 10, 1896." On the 29th day of May thereafter appellee brought this suit, asking a cancellation of this note on the ground that he was induced to give it by fraud and deceit on the part of defendant, and that there was no legal consideration therefor. Appellant, by way of defense, denies that he practiced any fraud or deceit in obtaining the obligation, and states that some time previous to its execution he and his wife had sold to appellee a house and lot in consideration of $1,600, which was to be paid in four annual installments of $400 each on the 1st day of December 1895, 1896, 1897, and 1898, which was evidenced by the written obligations of appellee therefor, bearing interest from date; that appellee failed to pay the notes that matured in 1856 and 1896, but did pay $96 interest thereon; that on the 10th day of December, 1897, he agreed to sell this house and lot to one John Baird for $1,325, which left a balance of about $400 due upon the purchase money; and that in satisfaction of this $400, and in consideration of his agreeing to the sale made to Baird, appellee agreed to pay to him $200, $50 of which was to be paid in cash in a few days thereafter, and for the residue the note in contest was executed. Appellee makes his answer a counterclaim, and prays judgment for the $50 which was to be paid in cash. The affirmative averments of the answer were all controverted by a reply. Appellee testifies, in substance, that he was anxious to get rid of the property, and to discharge his obligations therefor, and that he entered into negotiations with Dr. Baird looking to a sale of the property to him, and that he notified Baird that, if he would deliver to him the outstanding notes which he had executed to appellant for the property, he would make him a deed thereto; that pursuant to this proposition Baird met appellant in Bardstown, and purchased from him all of his outstanding notes for the sum of $1,325; that, after the purchase of the notes had been consummated, appellant came to see him at his residence, and informed him that no trade had been entered into between himself and Baird with reference to the notes, and that none would be, unless he would consent to execute to appellant the obligation sued on for the difference between what Baird offered for the notes and their face value; and that, relying upon these false representations, he was induced to execute the note sued on, after appellant had actually sold and transferred the obligations executed to him to Baird. Appellee does not testify that he was present, or had any personal knowledge as to what had...