
    DAUGHERTY v. BREWER.
    Court of Appeals of Kentucky.
    May 7, 1954.
    Guy K. Duerson, Jr., Berea, for appellant.
    C. P. Moore, McKee, for appellee.
   STANLEY, Commissioner.

In defense of a suit on a $400 note, Mrs. Pearl Daugherty pleaded non est factum and suretyship of her deceased husband, Lawrence Daugherty.

The only evidence that Mrs. Daugherty signed the note was the testimony of the plaintiff that after her husband’s death, she told him she had signed it. The overwhelming positive proof is that she did not sign it or authorize anyone to put her name on the note. On that issue the jury found for the plaintiff.

All the evidence is that the consideration was paid to the husband and there is no evidence that the wife received any benefit therefrom. This issue was not submitted to the jury. By the mandatory statute, a wife signing a note as surety for her husband is not liable for its payment. KRS 404.010(2). Where the husband negotiated the loan and received all the consideration, the wife is but a surety. Oatts v. First National Bank of Somerset, 244 Ky. 635, 51 S.W.2d 952. The trial court should have directed a verdict for the defendant on this ground.

The appeal is granted and the judgment is

Reversed.  