Legal Opinion

Tolle v. Smith's

Court of Appeals of Kentucky

Decided December 21, 1895PublishedCited by 5 opinions

Case 76 — PETITION ORDINARY — APPEAL FROM DAVErSS CIRCUIT COURT. 1. Such an action as this must be upon the new promise and not upon the old contract from which the defendant has been discharged by proceedings in bankruptcy.

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Case 76 — PETITION ORDINARY — APPEAL FROM DAVErSS CIRCUIT COURT. 1. Such an action as this must be upon the new promise and not upon the old contract from which the defendant has been discharged by proceedings in bankruptcy. (Ogden v. Redd, 13 Bush, 581; Carson v. Osborne, 10 B. M., 155; Egbert v. McMiehael, 9 B. M., 44; Mason v. Hughart, Idem., 482; Graham v. Hunt, 8 B. M., 8.) 2. The evidence shows a promise to pay as soon as able, and such a, qualified promise will not support an averment of an unqualified promise. A suit on such qualified promise must set it up specifically and then aver…

1Opinion of the Court

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

September 15, 1893, John II. Beals, executor of John C. Smith, brought this action against S. R. Tolle. In his petition, after alleging execution of a promissory note June 3, 1878, for $189.63 by defendant to his testator, plaintiff states that he paid defendant thereon, June 4,1878, $9.63; December 25, 1885, $10, and August 2, 1887, $5, all of which payments were endorsed on the back of the note; and that he, at the dates of the two last payments promised said Smith to pay the debt, and has repeatedly, both before and since, promised to pay same.…

2Cases cited2 opinions

  1. Allen & Co. v. FergusonSupreme Court of the United States · 1874
  2. Eckler v. GalbraithCourt of Appeals of Kentucky · 1876

3Cited by5 opinions

  1. Brashears v. CombsCourt of Appeals of Kentucky · 1917
  2. In re CoxDistrict Court, W.D. Kentucky · 1940
  3. Chism v. BarnesCourt of Appeals of Kentucky · 1898
  4. In Re ShepherdDistrict Court, D. Oregon · 1945
  5. Alper v. Republic Inv. Co.Court of Appeals for the D.C. Circuit · 1936

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