179 Ky. 88
Court of Appeals of Kentucky.
Feb. 1, 1918.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by the National Bank of John A. Black against Pierce Smith and others.
Directed verdict for plaintiff, denial of motion for a new trial, and defendant named appeals.

In this action, brought by the "National Bank of John A. Black" upon a note of $500, of date February 15, 1915, and due four months thereafter, the bank obtained judgment against the makers, Wm. Bailey, J. R. Bailey, and Pierce Smith, following a verdict in its favor for the amount thereof, returned in obedience to a peremptory instruction given by the trial court at the conclusion of all the evidence. Pierce Smith, one of the obligors in the note, entered a motion for a judgment in his behalf non obstante veredicto, which the court overruled. He thereupon filed a motion and grounds for a new trial, which was refused, and he has appealed.

The separate answer filed by the appellant, Smith, simply interposed the defense that his signature to the note was procured by fraud on the part of the appellee. The following facts appear from the evidence: About ten years prior to the execution of the note sued on, appellee loaned to Wm. Bailey, J. R. Bailey, Matthew Horn, and the appellant, Pierce Smith, $500, for which they executed and delivered to it their promissory note. This note was renewed every four or six months from that time down to February 15, 1915, at which time the last renewal, the note sued on, was executed by the two Baileys and the appellant, Smith; Matthew Horn having died in February, 1913, intestate and insolvent. The two Baileys were brothers, and Horn and Smith their brothers-in- law. The four makers appear to have been joint obligors; at any rate it was not alleged in the answer of the appellant, Smith, that he was a surety upon the note. In an amended answer it was alleged that he agreed with appellee that he would sign the note sued on as surety for the Baileys, if Horn would also sign it, but the averment could not have been true, because Horn had been dead two years when the note was executed, and appellant's own testimony shows that fact was known to him when he signed the note, and that he had signed several previous renewals of the note after Horn's death. The evidence wholly fails to show that any fraud was practiced upon the appellant in obtaining his signature to the note sued on, or any of those previously given by him and his co- obligors, of which it was the last renewal. The evidence further shows appellant's admission that when he signed the note it contained an entry upon the back showing it was a renewal of the Bailey note. There was no claim that the note had been paid, or that for any other reason appellant had been discharged from liability thereon. Manifestly, whether the appellant was a joint principal or only a surety in the note, he was primarily liable thereon to the bank for the amount thereof.

His liability on this note and on the previous renewals of the original note was not affected by the death of Horn. Indeed, no denial was ever made by appellant of his liability on the note until after the maturity of the renewal sued on, its protest and the demand made of him by appellee for its payment; and if, as claimed by him, the insolvency of the Baileys and the death of Horn left him as the only solvent obligor in the note, the misfortune and loss resulting to him therefrom was caused by no act of appellee. In brief, none of the causes which, under section 191 of the Negotiable Instruments Act (Laws 1904, c. 102), would have released him from liability upon the note, were shown to exist. So upon the evidence, the giving by the court of the peremptory instruction directing a verdict for appellee was authorized.

The principal ground relied on by appellant for a new trial in the court below and also for a reversal of the judgment on this appeal is that the trial court erred in overruling his motion for a judgment non obstante veredicto. This contention rests upon what is claimed to be a defect in the petition; the alleged defect being that it failed to allege that appellant either jointly with his coobligors or individually "executed and delivered" the note sued on. We think the averments of the petition sufficiently set forth the execution and delivery of the note as well as the promise of the makers to pay the same; but if this were not true the failure to allege in explicit terms that it was "executed and delivered" by the makers, including appellant, was cured by the amended answer filed by appellant containing these words, "He denies that he made, executed, or delivered said note." Whether its denial was necessary or not, this negative allegation was controverted by the appellee's reply, which put in issue the very fact appellant complains that the petition omitted to allege; moreover, the admissions made by him in giving his testimony show the due execution and delivery by him of the note. The attempted defense set up by the answer of appellant, as amended, was wholly devoid of merit.

Wherefore the judgment is affirmed.

Ky.App. 1918.
200 S.W. 44, 179 Ky. 88

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