October 10, 2012

Hofer v. Cowan McClung & Co., Laurel, 1902


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68 S.W. 438; 1902 Ky. LEXIS 278; 24 Ky. L. Rptr. 355

May 28, 1902, Decided


Appeal from circuit court, Laurel county.

Action by Cowan McClung & Co. against Jacob Hofer on a promissory note. Judgment for plaintiff, and defendant appeals.


CORE TERMS: delivery, note sued, demurrer, surety, owed

COUNSEL: D. K. Rawlings and A. L. Reid, for appellant.

Chas. R. Brock, for appellee.




 [*438]  WHITE, J. The appellant appeals from a judgment sustaining a demurrer to his answer, and, upon failure to plead further, a final judgment for the amount of the note sued on.

The answer reads: "The defendant, Jacob Hofer, for his separate answer to the petition says that while the note sued on bears date 24th of March, 1900, in fact it was signed by the defendant, Jacob Hofer, on the 25th day of March, 1900; that the 25th day of March, 1900, was Sunday; that the defendant, Hofer, did not owe the debt for which the note sued on was executed, and owed no part thereof; that his joint obligor, Ott, alone owed the debt, and the defendant, Hofer, was surety only; that plaintiffs herein, through their representative, had knowledge of these facts before the delivery of the note sued on, wherefore," etc. To this answer a demurrer was sustained, and the action of the court thereon is the only question presented.

The answer merely avers that the  [**2] note was signed on Sunday, and that the obligee had knowledge of that fact as well as that appellant was surety. There is no averment that  [*439]  the note was delivered on Sunday. For aught that the answer avers the delivery of the note and the acceptance by appellee might have been on a day other than Sunday. If so, the note would be valid and binding. Dohoney v. Dohoney, 7 Bush, 217; Campbell v. Young, 9 Bush, 240; Prather v. Harlan, 6 Bush, 185.

If the note was void, it was because of the statute (section 1321, Ky. St.) prohibiting certain things to be done, and the answer does not meet the requirements of that statute. Ray v. Catlett, 12 B. Mon. 534. The mere signing of the note without a delivery did not create a liability. There is no averment as to the time of the delivery. The answer is insufficient and the demurrer thereto was properly sustained.

Judgment affirmed.

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