#### Williams v. Justice.

(Decided January 16, 1912.)

Appeal from Pike Circuit Court

Writing — Action Upon — Fraud—Evidence.—In an action upon a writing where the defense was that it was obtained by fraud and the defense supported by several witnesses, the plaintiff not testifying, although it was shown that he lived in the town where the trial occurred, the finding of the lower court upholding the defense was proper.

AUXIER, HARMAN .& FRANCIS for appellant.

BUTLER *&*MOORE for appellee.

Opinion of the Court by

Judge Nunn

Affirming.

Appellant instituted this action upon an account the balance of which was $238.84, made out against W. ft. Justice and appellee, Ep Justice. It was the individual account of W. E. Just:ce. He filed with his petition what purported to he a written promise of Ep Justice to pay it. The writing is as follows:

> “Pikeville, Ky., Nov. 14th, 1902.

> “We, the undersigned, who compose timber firm of Ep & W. E. Justice hereby agree to pay as a partnership not only the partnership debts owing and that shall become owing to U. K. Williams, hut also the partnership property shall he subject to individual indebtedness of undersigned to said Williams, both that now due and to become due, including that hereafter contracted. We also agree as individuals to pay partnership, indebtedness and each agrees to pay the other’s individual in*252debtedness and a mortgage is tbis day executed to secure all tbis indebtedness.

> “W. K. Justice,

> “Ep Justice.”

> ‘ ‘ Att: S. P. Hendeick. ’ ’

Ep Justice filed an answer denying any promise to pay W. R. Justice’s account, and alleged tbat tbis writing was obtained from bim by fraud of appellant; tbat be could write bis name but could not read writing and tbat tbe writing was not read to bim before be signed it. He also alleged tbat be and W. R. Justice were engaged as partners in getting out logs and sending them to market, and tbat W. R. Justice was likewise engaged upon bis own account. At tbe time tbis writing was executed appellant bad an account against tbe firm of Ep Justice and W. R. Justice, one against Ep Justice individually and one against *~W.*R. Justice individually. Tbe first two were paid in full and tbis action was instituted upon tbe last. Ep Justice testified tbat wben tbe mortgage referred to in tbe writing was read to bim for bis acknowledgment be, for tbe first time, discovered tbat be was to become bound for tbe individual debt of W. R. Justice and be refused to be so bound; and tbat appellant then appended to tbe mortgage a statement showing tbat be was not to become bound for tbe individual debts of W. R. Justice. Tbis was all denied by appellant, except tbe payment of tbe partnership account and tbe individual debt of Ep Justice.

Tbe theory of appellee was proved by himself and W. R. Justice, and facts were shown by several other witnesses which substantiated appellee’s claim; to-wit, after Hie suit was filed Ep Jnstice asked appellant what be bad sued bim for, as be bad paid bim all be owed bim, and appellant answered tbat be knew be bad, tbat be put bis name in because be was afraid be would be demurred out of court. Tbe writing referred to was written by tbe attorney of appellant and attested by S. P. Hendrick, one of appellant’s clerks, but neither of them testified in tbe case although it was shown tbat they lived in tbe town of Pikeville at the time of tbe trial. Tbe clerk who took tbe acknowledgment of Ep Justice to tbe mortgage, also failed to testify to either contradict or corroborate Ep Justice with reference to bis refusal to acknowledge the deed before it was interlined as before stated. Appellant alone was tbe only witness sustaining bis position in tbe matter.

*253We do not feel disposed to disturb tbe finding of tbe lower court in bebalf of appellee, and tbe judgment is affirmed.