Mudd v. Carico

JUDGE WHITE delivered the opixtox oe the court. Tbe petition herein alleges that in 1893 the appellee Wilfred Carioo, as executor of B. F. Dougherty, sold to Jerome Hayden a certain lot in the city of Owensboro, the eonsidei’ation being.$5,000, of which sum $1,000 was paid cash, and notes of $800 each were executed for the balance; that in November, 1895, Hayden and wife sold, and by deed conveyed, to appellant. Mudd, a one-half undivided interest in the property, the consideration for the purchase, among other things, being “that the said Mudd assume and pay to tin* plaintiff one-half of the aforesaid [722] purchase money then due and to become due thereon, and said Mudd so assumed and so promised to pay;” that after-wards, in 1806, Hayden sold to appellant the remaining one-half interest in said property, the consideration for this last interest being that Mudd was to assume and pay. the remaining half of the purchase money. To this petition appellant filed an answer by which it is pleaded that there was in the deed from the appellee to Hayden a stipulation, Adz.: “It is understood and agreed by the parties hereto that, in the event any two of said notes become due and be unpaid, the said party of the first part (appellee) may treat them all that are unpaid as due, and enforce his lien for same.” Appellant then pleads certain payments made on the notes, and alleges that, by receiving said payments, appellee waived his right to treat the notes as due, and to enforce his lien. A demurrer was sustained to this answer, and appellant failing to plead further, judgment was rendered for the sum due, and enforcing the lien. From that judgment this appeal is taken. It is insisted by counsel for appellant that, taking the petition most strongly against the pleader, the averment quoted above means a promise to plaintiff to pay the notes of Hayden, and this, not being alleged to be in writing, was within the statute of frauds, and no recovery could be had thereon. Conceding that the petition states that the promise was made by appellant to appellee, and was yet the consideration of the lot deeded by Hayden to appellant, it was not within the statute of frauds. It was an undertaking by appellant to pay off his OAvn obligation. Jennings v. Crider, 2 Bush, 322 [92 Am. Dec., 487]; Hodgkins v. Jackson, 7 Bush, 342; and the recent case of Daniels v. Gibson, 20 Ky. Law Rep., 847 [47 S. W., 621], The demurrer to the answer was properly sustained, as [723] the facts plead, viz., the receipt of payments on tbe notes, did not operate as a waiver of the contract right to treat all notes as due, if two remain unpaid after they become due. This provision did not mean that the two notes must be wholly unpaid, but that, if two were not fully paid, the appellee could treat all as -due. Finding no error, the judgment is affirmed, with damages..