Thompson et al., v. Brownlie et al., Laurel, 1898

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THOMPSON et al. v. BROWNLIE et al.

COURT OF APPEALS OF KENTUCKY

45 S.W. 871; 1898 Ky. LEXIS 342; 20 Ky. L. Rptr. 235

May 10, 1898, Decided

PRIOR HISTORY:  [**1] 

Appeal from circuit court, Laurel county.

Action by G. D. Brownlie and others against H. C. Thompson and others to have the forfeiture of a mining lease declared, and to recover sums alleged to be due under the lease. Jonathan McNeil, who was made a defendant, filed an answer and cross petition, alleging that prior to the lease from the Altamont Coal Company to H. C. Thompson, referred to in the petition, that company had leased the property to M. M. Howard, and that said Howard had assigned said lease to him, and that he then assigned said lease to H. C. Thompson, in consideration of the sum of $3,250, for which Thompson executed his note, for the amount of which said McNeil prayed judgment. H. G. Thompson, for answer to this pleading, alleged that he had, with McNeil's consent, assigned the lease to other persons, who had assumed his debt to McNeil, and that McNeil had, in consideration thereof, released him, and agreed to look to said assignees for his debt. Judgment for plaintiffs, and also for McNeil on his cross petition, and H. C. Thompson appeals.

DISPOSITION: Reversed.

COUNSEL: John L. Scott & Son, for appellant.

J. W. Alcorn, for appellees.

JUDGES: GUFFY, J.

OPINION BY: GUFFY

OPINION

 [*872]  GUFFY, J. The appellant complains of the judgment  [**2] canceling the lease executed by the Altamont Coal Company to H. C. Thompson, and also complains of the judgment of $482 rendered in favor of appellees the Brownlies against H. C. Thompson; and appellant also complains of the judgment in favor of McNeil.

It seems to us that the lease of H. C. Thompson was assignable, so as to vest the right of action in the assignee; and as sundry breaches of the lease were alleged to have occurred, which breaches, by the terms of the lease, were causes for forfeiture of the same, and the breaches not being denied by H. C. Thompson, and in fact proven by the appellees, the court did not err in adjudging the lease forfeited. It was also alleged by the plaintiffs that H. C. Thompson had mined 482 cars of coal after the assignment of the lease to the plaintiffs, and, the same not being denied by H. C. Thompson, judgment for the $482 was properly rendered against H. C. Thompson; and these judgments are affirmed.

We do not think that J. M. Thompson sustained his attempted defense to the forfeiture of the lease.

We think that the answer of H. C. Thompson to the cross petition of appellee McNeil constituted a sufficient defense to the claim of McNeil for judgment  [**3] against Thompson on the $3,250 note, or any part thereof; and, the answer not having been replied to, it must be taken as true. It therefore results that the court erred in rendering judgment against H. C. Thompson for any sum of money in favor of appellee McNeil, and that judgment is reversed. The judgment enforcing McNeil's lien upon the property upon which he was adjudged to have a lien was properly rendered, and is not to be affected by this opinion. It appears that McNeil, several months after the rendition of the judgment, filed with the clerk what is styled the "Reply of McNeil vs. H. C. Thompson," but same cannot be considered by this court. The cause is remanded, with directions to dismiss the cross petition of McNeil, so far as H. C. Thompson is concerned, and for proceedings consistent herewith.