#### Pickrell & Craig Company v. Castleman-Blakemore Company.

(Decided November 8, 1917.)

Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).

Pleading — Answer—Set-Off—Sufficiency—Demurrer.—An answer and set-off which fails to state facts sufficient to constitute a good cause of action is bad on demurrer.

DUFFIN, SAPINSKY & DUFFIN for appellant.

DAVID R. CASTLEMAN and PRYOR & CASTLEMAN for appellee.

Opinion of the Court by

William Rogers Clay, Commissioner

— Affirming.

This is an appeal by the Pickrell & Craig Company from a judgment in favor of the Castleman-Blakemore Company for $2,800.00 and interest.

*636The Castleman-Blakemore Company was the owner of one hundred shares of the preferred stock in the Pickrell & Craig Company, a corporation. For the years 1912, 1913, 1914 and 1915 Pickrell *&*Craig Company earned and regularly declared a 7 per cent, dividend on its preferred stock. Having declined to pay the Castle-man-Blakemore Company the dividends due on its stock, that company brought this suit to recover the dividends-.At that time the Pickrell *&*Craig Company had a separate action pending against the Castleman-Blakemore Company to recover unliquidated damages in the sum of $25,000.00, growing out of the violation of an alleged contract whereby it was given the exclusive right to store and sell all the goods of the Castlemari-Blakemore Company in Jefferson county. Upon the first hearing of that suit, the Pickrell *&*Craig Company recovered a judgment for $4,200.00. On appeal this judgment was reversed and the cause remanded for a new trial consistent with the opinion. The Castleman-Blakemore Company v. Pickrell & Craig Company, 163 Ky. 750, 174 S. W. 749. On the return of the case the petition was amended. On demurrer thereto, the petition was held insufficient and judgment rendered in favor of the Castleman-Blakemore Company. This judgment was superseded and an appeal prosecuted to this court.

Upon the institution of this action to recover the dividends, the Pickrell *&*CSraig Company pleaded the same claim for unliquidated damages as a set-off, basing its right to. do so on the allegation that the Castleman-Blakemore Company was insolvent. By numerous pleadings, the steps in the independent action were made to appear as above set out. Demurrers were sustained to the various pleadings filed by the Pickrell & Craig Company, and its set-off finally dismissed.

In view of the conclusion of the court we deem it unnecessary to determine whether the Pickrell *&*Craig Company had the right to assert its alleged claim for unliquidated damages both by independent action and by way of set-off in this suit. Upon the final hearing of this suit, there was no valid subsisting judgment in favor of the Pickrell *&*Craig Company which it could plead as a set-off. That being true, it was necessary for the answer and set-off to state facts sufficient to constitute a good cause of action. The facts alleged in the amended answer and set-off are the same as those relied on in the amended petition filed in the independent suit. Further discussion of their sufficiency to constitute a set-off is *637rendered unnecessary by tbis court’s bolding that they were insufficient to constitute a good cause of action. Pickrell *&*Craig Company v. The Castleman-Blakemore Company, 174 Ky. 1, 191 S. W. 680. It follows that tbe demurrers were properly sustained and tbe set-off dismissed.

Judgment affirmed.