October 1, 2012

Cooper v. Jackson, Pulaski, 1900



57 S.W. 254; 1900 Ky. LEXIS 640; 22 Ky. L. Rptr. 295

June 1, 1900, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county. Action by James Jackson, guardian, against William Cooper, on a note. Judgment for plaintiff, and defendant appeals.


COUNSEL: W. A. Morrow and C. W. Lester, for appellant.

O. H. Waddle, for appellee.




 [*254]  BURNAM, J. - This is the second appeal to this court from judgments of the lower court in this case. The opinion rendered on the former appeal, reported in 39 S. W. 39, recites the facts, and substantially settled the law, of the case. Upon the return of the case to the trial court the pleadings were made up, and a trial had before a jury, which resulted in a verdict and judgment for appellee, which we are asked to reverse for alleged errors occurring on the trial.

The first error complained of is that appellee was permitted to testify that when he told Bobbit, the principal obligor in the note, that Elrod, one of the securities, had given him notice to sue, Bobbit informed him that he had arranged with appellant to sign the note in place of Elrod and Barnett, and that, pursuant to instructions from Bobbit, he sent the note to appellant for his signature, and it was returned signed. It is insisted for appellant that this testimony is  [**2] incompetent under subsection 2 of section 606 of the Civil Code of Practice, which provides that no person shall testify for himself concerning any transaction with one who is dead. This is not a proceeding against Bobbit, and no relief is sought against him; and the testimony complained of was only given as a matter of inducement, explaining the reason why appellee sent the note to appellant for his signature, and, we think, was clearly competent.

It is next contended by appellant that the instruction is erroneous. We think not. An agreement on the part of a creditor for general indulgence towards a principal, without any definite time being specified, with proof of actual forbearance for a reasonable time, has always been held sufficient to support a promise by a third person to perform the undertaking in case the principal fails to do so. Appellee testifies that he would have sued on the note if appellant had not signed it, and that in consideration of such signature he forbore to do so, and granted to the payee additional time. We perceive no error prejudicial to the substantial rights of appellant, and the judgment is affirmed.

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