Court of Appeals of Kentucky.

McVEY

v.

PAYNE.

Feb. 26, 1897.

Appeal from circuit court, Knox county

"Not to be officially reported."

Action by Joseph Payne against John McVey. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.

Reversed.

WHITE, J.

This is a suit at law on three notes of $75 each executed by John McVey to Isaac Payne for a part of the purchase price of a small tract of land, containing two acres, on which there is a mill situated. These notes were assigned to Joseph Payne by Isaac Payne, who brought this suit at law to recover personal judgment. The defendant, McVey, filed an answer, in which he alleges and pleads that the three notes sued on, and set out in the petition, and executed to Isaac Payne, were executed without any consideration. On this pleading and issue a trial was had by a jury, a verdict was rendered in favor of the plaintiff, and judgment entered by the court in accordance with the verdict. The appellant entered a motion and filed reasons for a new trial, and, the court having overruled his motion for a new trial, he has brought the case to this court, and asks a reversal of the judgment. Many exceptions were taken during the trial to the ruling of the court in admitting and rejecting evidence offered by appellant, many of which exceptions it is unnecessary to notice. During the trial the appellee, Joseph Payne, made, executed, and tendered, in open court, a deed to the land. Appellant refused to accept the deed, and objected to its being filed in the case. The deed was filed and read to the jury. Appellant was not, in law, bound to accept this deed from Joseph Payne, and the same should not have been filed in the case and read to the jury.

Appellant complains of the instructions given to the jury, and which were excepted to by the appellant. Instruction marked "No. 1" reads: "If the jury believe from the evidence that the deed tendered by plaintiff embraced the land, or any part of the land, for which the notes sued on were executed, the jury should find for the plaintiff the amount of the notes sued on, and interest from their maturity until paid." We think this instruction was error, for the reason before indicated, and should not have been given. The jury seems to have based their finding on this instruction. Their verdict reads: "We, the jury, agree and find for the plaintiff according to instruction No. 1, amounting to $225, with interest." For the errors indicated the judgment is reversed and the cause remanded, with directions to the circuit court to grant appellant a new trial, and for further proceedings in accordance with this opinion.

Ky.App. 1897.

McVEY v. PAYNE.

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