United Loan & Deposit Bank v. Bitzer

• Decision Date: 27 January 1904
• Parties: UNITED LOAN & DEPOSIT BANK OF CAMPBELLSBURG v. BITZER et al.
• Court: Kentucky Court of Appeals

78 S.W. 183

117 Ky. 443

UNITED LOAN & DEPOSIT BANK OF CAMPBELLSBURG v. BITZER et al.

Court of Appeals of Kentucky.

January 27, 1904

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

"To be officially reported."

Suit by the United Loan & Deposit Bank of Campbellsburg against Peter Bitzer and others. From a judgment for defendant Bitzer plaintiff appeals. Reversed.

Carroll & Carroll and Wallace & Miller, for appellant.

Alfred Selligman, for appellees.

HOBSON J.

On July 18, 1892, Michael Gleason executed to John I. Calloway his note for $2,000, and a mortgage to secure it on some lots on Floyd street, in the city of Louisville. The note and mortgage were assigned by Calloway to appellant, the United Loan & Deposit Bank, who filed this suit to enforce its lien. Peter Bitzer was made a defendant to the action, and set up the fact that Michael Gleason in the year 1893 made a contract with the city of Louisville for the improvement of Floyd street between the center line of Magnolia avenue and the center line of Burnett avenue; that, upon the execution of this contract, Gleason desired to borrow money from Bitzer to purchase the necessary materials and to pay for the work required in the construction of the improvement as provided by his contract; that, with the express agreement between him and Gleason that Gleason should assign over to him the contract with the city, and all the warrants to be received thereunder, Bitzer advanced to Gleason, in money, the full value of the contract, and of all warrants to be received thereunder, and Gleason assigned to Bitzer all his rights under the contract, and all money and warrants to be received thereunder, of all which the city of Louisville had due notice; that, under Bitzer's supervision, and by his direction, and with his means and money, the improvement was made; that Bitzer paid with his own means for all of the material used in, and the work done on, the improvement; that Gleason did not furnish any of the material, or pay for any of the material or work, but the improvement was wholly constructed by Bitzer, and at his expense; that three warrants were issued by the city for the cost of the improvements, which was chargeable to Gleason's property and these warrants were issued to Bitzer. On these facts Bitzer claimed a lien on the land for the amount of the warrants. A demurrer having been sustained to this pleading, Bitzer filed an amended pleading, in which he alleged that the improvement in front of the property of Gleason enhanced its value to the extent of its cost. The court thereupon overruled the demurrer to the answer as amended, and, the case being submitted for final hearing, entered judgment giving Bitzer preference over the mortgage executed to Calloway, and from this judgment the bank appeals.

We need not consider whether the allegations of the answer as amended were sufficient to entitle Bitzer to precedence over the mortgage. The allegations of the answer were aptly denied by a reply, and the only proof taken to sustain the allegations of the answer is the deposition of Bitzer himself and the deposition of his clerk, Wilkes. Exceptions were filed to the evidence of Bitzer on the ground that, Gleason being dead, he could not testify for himself as to any transaction between him and Gleason. This exception was well taken. The testimony of Bitzer as to transactions between him and Gleason, who is dead, cannot be considered, for he cannot testify for himself, under section 606 of the Code, as to a transaction with the decedent. Turner v. Mitchell (Ky.) 61 S.W 468;...