
    D. R. McKinney & Brother v. J. H. Gardner’s Adm’r.
    Promissory Note — Failure of Consideration.
    Where a note is executed upon the express consideration that the payee is to procure for the promisor a credit on a judgment against him, and no such credit is procured, there is a failure of consideration and such note is not enforcihle.
    APPEAL PROM ESTILL CIRCUIT COURT.
    January 5, 1877.
   Opinion by

Judge Elliott :

This suit was brought on a note for four hundred dollars, executed by the appellants to J. 'H. Gardner on the 15th of July, 1870. The appellants’ defense is that the note was executed without consideration, and in support of this defense they establish without contradiction the following facts:

A man by the name of J. C. Matherly had recovered a judgment against appellants in the Estill Circuit Court, a judgment for over two thousand dollars, all of which they had paid except about four hundred dollars. J. H. Gardner told appellants that Matherly owed him more than the sum due from them to Matherly, and presented them an order from Matherly for one hundred ninety-two dollars, or more,'but as the unpaid balance of Matherly’s judgment was more than the amount of Gardner’s order, and as Gardner told appellants that Matherly owed him fully the sum that they owed Matherly, it was agreed between appellants and Gardner that they would give their note to Gardner for four hundred dollars, that being the balance which it was supposed they owed Matherly, and Gardner was to procure them a credit on the judgment of Matherly for said sum. Gardner wrote on a blank leaf in the execution book in the clerk’s office of the Estill Circuit Court that appellants were to have credit for $400 on the judgment of Matherly against them.

J. N. Cardwell, for appellant.

Upon this agreement appellants executed the note sued on. Sometime after this J. H. Gardner departed this life and his administrator brought this suit. There is no proof that J. H. Gardner ever obtained a credit in favor of appellants for four hundred dollars of the Matherly judgment, nor did he ever transfer or deliver to appellants any account, order or note on Matherly for the amount of the note or any.other sum.

We are of opinion that as the note sued on was executed by appellants to Gardner upon the express consideration that Gardner was to procure them a credit on the Matherly judgment for its amount, and as he failed to do that, the consideration of the note has wholly failed; and the evidence is insufficient to sustain the judgment against appellants in the lower court.

Wherefore the judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.  