
    Wilhoit v. McCubbin.
    (Decided June 20, 1933.)
    
      HENRY G. BEDINGER for appellant.
    HUBBARD BROS, for appellee.
   Opinion op the Court by

Stanley, Commissioner

Affirming.

Tbe appellee, L. M. McCubbin, sued tbe appellant, J. D. Wilboit, to recover on a $200 promissory note. Tbe answer was made a set-off and counterclaim, and alleged, in substance that McCubbin bad agreed to lend tbe defendant $5,000 with wbicb to purchase a certain tract of land in Spencer county, Ind., tbe loan to be secured by a lien thereon, provided tbe title was good and tbe loan approved by Roy Hargan. Tbe three men inspected tbe land and Hargan approved tbe proposed investment. McCubbin loaned Wilboit $200, which was represented by tbe note, to cover expenses of that trip and of one to Marshall, Ill., to arrange for tbe purchase, as tbe parties who owned tbe land lived there. Tbe $5,000 proposed to be loaned- was to be repaid by Wil-boit when be could effect a sale of tbe land. Acting upon.this promise of tbe plaintiff, tbe defendant contracted to buy tbe property. Tbe title was a good and marketable one. Upon bis return from Illinois be called upon McCubbin to make tbe loan, but be refused to do so. Tbe defendant bad contracted to sell tbe property at an agreed price of $10,000 to one who was willing, able, and ready to buy it for that amount. It was alleged that, by reason of tbe plaintiff’s failure to lend tbe money, the defendant bad been damaged in tbe sum of $5,000, the amount of profit wbicb be could have made in tbe transaction. Wherefore he prayed that tbe petition be dismissed and for a judgment over against tbe plaintiff for $5,000, to be credited by tbe amount of tbe note.

A .demurrer was sustained to this pleading, and it was dismissed. An amended answer pleaded no consideration for the note, and set np in a more abbreviated form the facts alleged in the set-off and counterclaim, and averred that, had the promise not been made, he would not have borrowed the money, and that there was a failure of consideration. Issue was joined on this plea of no consideration, and upon the trial the defendant admitted having received and spent the money. The court peremptorily instructed the jury to find for the plaintiff.

The appellant insists that he had a right to set up his claims in the suit on the note. It is not proper to set off an unliquidated claim for damages against the contract in the absence of a plea of insolvency, nonresi-dency, or some other equity existing in favor of the pleader. Merchants’ Wholesale Grocery Co. v. Bond-Foley Lumber Co., 222 Ky. 320, 300 S. W. 872. The pleading was fatally defective, as no consideration was alleged for the agreement on the part of McCubbin to lend the money. It is not alleged that there was ever a tender made of a mortgage on the property to secure the loan, which was one of the conditions upon which the defendant had agreed, to make the loan as alleged. Moreover, the pleading of a contemporaneous agreement inconsistent with the written contract sued on, which was the note, is demurrable in the absence of an allegation that it was omitted by fraud, accident, or mistake, or that the writing does not contain the. whole agreement. Ashcraft v. Farmers’ Deposit Bank, 225 Ky. 836, 10 S. W. (2d) 276. The amended pleading can hardly be regarded as amending the original set-off and counterclaim, but, if it should be so considered, it was simply alleged that through mutual mistake of the .parties the note did not constitute the entire agreement. That was but a conclusion. The facts must have been stated. Brown v. Union Central Life Insurance Co., 241 Ky. 514, 44 S. W. (2d) 514. The. demurrer was therefore properly sustained.

There is obviously no merit in the claim that the court erred in directing a verdict for the plaintiff upon the issue of no consideration. ' ' ■

Judgment affirmed.  