Union Cent. Life Ins. Co. v. Johnson's Adm'x

• Decision Date: 16 October 1903
• Parties: UNION CENT. LIFE INS. CO. v. JOHNSON'S ADM'X.
• Court: Kentucky Court of Appeals

76 S.W. 335

UNION CENT. LIFE INS. CO. v. JOHNSON'S ADM'X.

Court of Appeals of Kentucky.

October 16, 1903

Appeal from Circuit Court, Hickman County.

"Not to be officially reported."

Proceedings by the Union Central Life Insurance Company to establish a claim against the estate of Robert Johnson, deceased. From a judgment disallowing the claim, the claimant appeals. Reversed.

Gus Thomas, for appellant.

Shelbourne & Kane, J. M. Brummel & Son, and Hazelrigg & Chenault, for appellee.

HOBSON J.

Robert Johnson died a resident of Hickman county, and this suit was filed by his administratrix to settle his estate. The case being referred to a commissioner to report the debts appellant filed before him, properly proven up, a note for $2,436.47, dated October 15, 1898, and due in one year, which purported to be signed by D. Johnson and Robert Johnson. The claim was allowed by the commissioner, and thereupon exceptions were filed to it by the administratrix to the effect that the decedent had not signed the note, or authorized any one to sign his name to it. In amended exceptions it was pleaded that D. Johnson was the principal in the note and Robert Johnson his surety, and that Robert Johnson did not authorize any one in writing to sign his name to it. In response to the exceptions appellant pleaded that after the note had been delivered to it, and before it was accepted, appellant sent its agent to the town of Clinton, to see Robert Johnson concerning the note; that the agent saw Johnson, and was told by him that the note had been executed by him, that he was financially good, and that the company need not hesitate to accept the note; that upon receipt of this information, and acting upon it, it accepted the note which it would not have done except for the representations of Johnson; and that thereby he was estopped to plead that he did not sign the note. The court declined to allow the response to be filed, as it would seem, upon the idea that further pleadings were unnecessary. The case was by the court submitted to a jury. The court asked the jury this question "Did the decedent, Robert Johnson, sign his name to the note in controversy?" The jury made the following answer: "We nine of the jury say 'no,' " and thereupon the court entered a judgment disallowing the claim. The proof was conflicting as to whether Robert Johnson signed the note. It left no doubt that D. Johnson, who was his son, was the principal in the note, and Robert Johnson the surety. The proof did not show how or by whom Robert Johnson's name was placed to the note, if he did not sign it himself. S. Y. Rodman, the agent of the insurance company, among other things testified as follows: "I came here along in October or November, 1898, after this note was executed. I came down here to find out whether Mr. Johnson had signed this note or not. I met Mr. Johnson out in the street in front of those stores out there. I was acquainted with him, and had been for two years, and, after passing the compliments of the day, he asked me if the company had accepted the note that he and Dave had executed for his indebtedness, and I told him that I didn't know whether they had taken action on it or not, and he said he thought they were a little long, and I says, 'They always take their time to look into matters of that kind, and I presume they are investigating your financial ability.' Now, then, that was about all that passed between him and me about it, but he introduced the subject himself, and saved me the trouble of doing so, and I had intended to do it myself." He also testified that at the time of this conversation the company had not accepted the note, and made this statement: "He asked me if the company had accepted the note that he and Dave had executed. He hadn't heard from the company as to whether they had accepted it or not, and he asked me if they had, and why they were so long about it." The witness said that it was customary for the company to investigate notes for such an amount as this before accepting them, and that Johnson made to him during the conversation this statement: "It is perfectly right to investigate my property. You will find that the titles are all right, and I have no objections to your investigating." The defendant also showed that Johnson afterwards signed and sent to it the following writing: "Clinton, Ky. November 23, 1900. E. P. Marshall, Secretary, Cincinnati, O.--Dear Sir: Regarding the note of D. Johnson for $2,436.47 dated October 15th, 1898, and payable to the Union Central Life Insurance Company, per agreement, and signed D. Johnson and Robt. Johnson. I hereby certify to...