Old '76 Distillery Co. v. Sclafsky , 266 Ky. 547 ( 1936 )

Reversing.

This action was filed by appellee and plaintiff below, Mandel B. Sclafsky, against appellant and defendant below, Old '76 Distillery Company, in the Kenton circuit court. It is in all of its essential respects the same, and based upon the same character of complaint, as was the action in the case of Old '76 Distillery Company v. Wiechelman, 266 Ky. 533,99 S.W.2d 725, this day decided, except as to the way in which the cases were practiced.

In this case defendant, in the first paragraph of its answer, raised an issue as to plaintiff's purchase of the whisky warehouse receipts upon which the action was based. In other paragraphs of the answer it alleged the facts that were also alleged and denied in the Wiechelman Case, but to which paragraphs the court sustained plaintiff's demurrer filed thereto. Evidence was taken on the only issue that the court permitted the defendant to raise and upon submission there was a verdict and judgment for plaintiff. Defendant's motion for a new trial was overruled and it prosecutes this appeal.

We held in the case referred to, and this day decided, that the facts therein, both alleged and proven, constituted a good defense; the demurrer filed by plaintiff in this case to the paragraphs of the answer setting up substantially the same facts admitted them to be true, and from which it necessarily follows that the court erred in sustaining the demurrer.

Wherefore, for the reasons stated, the judgment is reversed, with directions to overrule the demurrer, and for proceedings consistent with this opinion.