
    Martyn, et al. v. Jacoby’s Administrator, et al.
    (Decided March 20, 1928.)
    Appeal from Bourbon Circuit Court.
    1. Evidence. — Where plaintiff’s intestate, as surety for defendant on sale bond, paid amount thereof in administrator’s action to recover amount paid, testimony of defendant’s witnesses that intestate had stated in their presence defendant did not owe him money, and had owed him some money, but paid it, though uncontradicted, need not be accepted, where intestate’s statements as related were vague and indefinite and were not inconsistent with existence of debt.
    2. Appeal and Error. — Where plaintiff’s intestate, as surety on defendant’s judicial sale bond, paid bond, and administrator brought action to recover amount thereof, the Court of Appeals cannot disturb judgment on circuit court’s finding of fact that plea of payment was not proved, where on consideration of facts and circumstances there was doubt as to truth of matter.
    TALBOTT & WHITLEY for appellants.
    DENIS DUNDON for appellees.
   Opinion op the Court by

Judge Willis

Affirming.

E. J. Martyn purchased property in Paris, Ky., on March 26, 1923, at a judicial sale and J. L. Jacoby became his surety on two sale bonds due in six and twelve months. Martyn failed to pay the bond first maturing, and Jacoby paid $1,600 thereon. Martyn paid the other bond and deed was made to him. Jacoby died in 1926, and his administrator filed suit against Martyn to recover the sum of $1,600, with interest from the date of payment of the bond by Jacoby. Martyn admitted the indebtedness, but asserted payment thereof to Jacoby, giving the dates and amounts of the several payments alleged to have been made in 1924 and 1925.

The administrator controverted the plea of payment and proof was taken by both parties. The circuit court rendered judgment for the administrator of Jacoby, and Martyn has prosecuted this appeal.

The appellants insist that the finding of the chancellor is contrary to the evidence. The issue in the case was whether the obligation had been paid, and the burden of proof was admittedly upon appellant. He Gould not testify for himself as to any transactions with the decedent; and he relied upon the testimony of two witnesses to sustain his claim that the debt had been paid. Louise January, a colored woman, testified that, on one of her frequent visits to his house on business with the housekeeper, Mr. Jacoby inquired of her how Ed Martyn was getting along now. She asked him if Ed owed him, to which he answered in the negative. The time was fixed as in July or August, 1925. Prank Morrow, a colored boy, 18 years old, testified that he drove an automobile for Jacoby from 1922, and on one of the occasions in the latter part of the summer of 1925 when they were out driving they passed Ed Martyn, whereupon Jacoby asked how Martyn was getting along in his business, and was told all right, when Jacoby remarked: “Yes, I think he must be, because he owed me some money, and has paid it back.”

In connection with the testimony of these witnesses appellant relies upon some circumstances as lending corroboration, but they need not be mentioned in detail. It is argued that the testimony is uncontradicted and must be accepted. Johnson v. Louisville & I. R. Co., 199 Ky. 524, 251 S. W. 843; Brown v. Johnson, etc., 132 Ky. 70, 116 S. W. 273; Lee v. Lee, 215 Ky. 226, 284 S. W. 1052. But the argument is fallacious. The statements related by tbe witnesses are vague and indefinite, and are not inconsistent with the existence of tbe debt. Tbe solicitude of Jacoby as to Martyn’s business evidenced by bis inquiries may bave been prompted by consideration of bis claim against bim. It is apparent that it made that impression on one of tbe witnesses, because she bluntly asked tbe question. His statements that Martyn owed bim nothing may bave been actuated by a desire to protect bim from tbe prying curiosity of bis neighbors. Such testimony, as to declarations of a person since deceased, is regarded with slight favor, and received with great caution. Higgs v. Wilson, 3 Metc. 337; Blackburn v. Commonwealth, 12 Bush, 187.

Tbe circumstances of tbe case are significant. Tbe sum involved was considerable, and both parties were intelligent, business men, with checking accounts at a bank. No deposits were made by Jacoby corresponding with tbe alleged payments, and it is improbable be would bave kept so much money on hand when it was bis custom to deposit bis funds at tbe bank. It is not shown that be ever kept any considerable sums of money at bis home. Jacoby lived in tbe country and it would be inconvenient and unusual to carry currency to bim when a check would bave been more convenient and secure. Tbe explanations suggested to justify a contrary view are far-fetched and unlikely. Other circumstances to tbe contrary quite as cogent as tbe testimony of tbe witnesses are shown by the proof, and we aré not satisfied from tbe evidence that tbe debt was paid.

Tbe circuit court reached tbe conclusion that tbe plea of payment was not proven, and we are not authorized to disturb his judgment on a finding of fact, when, upon a consideration of all tbe facts and circumstances, the mind is left in doubt as to tbe truth of tbe matter. Clark v. Isaacs, 182 Ky. 391, 206 S. W. 606; Daniel v. Shaver, 184 Ky. 674, 212 S. W. 913; Johnston v. Williams, 187 Ky. 764, 220, S. W. 1057.

In this case tbe conclusion of tbe chancellor corresponds with our own judgment upon tbe vital issue to be determined.

The judgment is affirmed.  