24 Ky.L.Rptr. 129
Court of Appeals of Kentucky.
May 6, 1902.
ACTION: Affirmed.

Appeal from circuit court, Knox county.

"Not to be officially reported."

Action by the assignee of the United States Building & Loan Association against M. R. Day to recover land. Judgment for defendant, and plaintiff appeals.

The appellant instituted this action to obtain a judgment against the appellee, Day, and asserting a lien upon certain property by virtue of a mortgage. It appears from the petition that the defendant, M. R. Day, subscribed for 20 shares of stock in said association, and shortly after borrowed $400 in money, and executed his note therefor, and also the mortgage in question. He was to pay $12 per month on the stock until it matured, and upon the loan he agreed to pay 6 per cent. interest and 6 per cent. premium. This he paid for a number of months. The substance of the defense relied upon is a plea of payment or settlement. The defense is that, by agreement between himself and the association before its assignment, they were to give him credit for $359.25 on his note, as the value of his stock, and cancel his stock; that he accepted that settlement; and that the other payments he had made in the way of dues and interest paid off the residue of the note. This settlement and payment were denied by the appellant, and, on motion of appellee, the case was transferred to the ordinary docket for trial of the legal issue of payment of the debt. A trial resulted in a verdict and judgment in favor of the defendant, and, plaintiff's motion for a new trial having been overruled, it prosecutes this appeal. It may also be remarked that plaintiff alleged that, if that settlement or credit was given for the value of the stock, it was an unlawful preference, and subject to be disregarded, under the provisions of the act of 1856. To this plea the statute of limitation was pleaded, and not denied by the appellant. We conclude that no such issue is involved in this case.

The appellant complains of the transfer of the cause to the ordinary docket. We think the court did not err in submitting the question of settlement or payment to a jury.

We do not think the court erred in the admission or rejection of evidence, to the prejudice of the substantial rights of the appellant. The only instruction given by the court is as follows: "Gentlemen of the jury, you will find for the plaintiff the sum of $348.27, with interest from January 8, 1897, until paid, unless you believe from the evidence that plaintiff and defendant agreed that defendant's twenty shares of stock were of the value of $359.35, and that, by agreement of the parties, said twenty shares of stock were surrendered by defendant to the plaintiff in payment of the said defendant's indebtedness to plaintiff. In that event, you will find for the defendant." We think that the instruction fully presented the law applicable to the case on trial. It completely covered the only issue made and presented to the jury.

Perceiving no error prejudicial to the substantial rights of the appellant, the judgment is affirmed.

Ky.App. 1902.


68 S.W. 20, 24 Ky.L.Rptr. 129


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