Palmateer v. Gatewood , 27 Ky. 503 ( 1830 )

Chief Justice Robertson,

delivered the opinion of the court.

In 1819, Palmateer owed Gatewood §•7.1 37i cents, on an open account. In 1821, he drew an order on P. Butler, in favor of Gatewood, for the amount of the account, which order was taken by Gate-wood, ‘•’•inpayment and discharge'1'1 of the account.

In 1824, Gatewood brought this suit against Palma-teer, on the original account, and obtained a judgment.

The only question presented, is, whether or not the evidence authorized the judgment? We think it did not. The order was a bill of exchange. The proof is, that it was taken in payment of the account. There is no proof of fraud by Palmateer, or that Butler did 'Hot owe him the amount of the order. Therefore, the suit should have been brought on the order, and not on , the account; see Hager vs. Coswell, IV J. J. Mar., 61.

Chinn and Haggin, for plaintiff.

Nor is there any proof that the order was presented in a reasonable time; nor even any proof that it was ever presented to Butler-; the proof is only that, about four or five months after the order was drawn, Palmatcer was informed that Butler had not paid it. Gatewood and ■Palmateer lived in Lexington; Butler in Versailles.

As the order discharged the account, according to ' the proof in the cause, the judgment must be reversed»

Judgment reversed, and cause remanded, for a new trial.