American Agricultural Chemical Co. v. Graham, 9 Ga. App. 479

American Agricultural Chemical Co. v. Graham

9 Ga. App. 479 | Ga. Ct. App. | 1911

Hill, C. J.

(After stating the foregoing facts.)

1. The evidence of payment, in support of the plea, is sufficiently specific 'as to when, how, and to whom payment was made. It is insisted by the plaintiff that the evidence did not disclose that the payments were made to the person or persons authorized to receive them. The note was made payable to bearer, and the person having in his possession a note made payable to bearer or indorsed in blank is presumed to be entitled to receive payment thereof, unless the payer has notice to the contrary; and the authorities even go to the extent of holding that payment to the person who has possession of the note will be valid, although he may be a thief, finder, or fraudulent holder. Ogden on Negotiable Instruments, 169. The evidence shows that Mrs. B. C. Butler, who was the administratrix of Charlie Butler, .to whom the maker had given the note as the agent of the plaintiff, was apparently claiming the right to collect the note as the owner thereof. She was in possession of the note when the first payment of $40 was made, and presumptively, therefore, had the right to collect it as the owner; it being a universal principle of law that the holder of a note payable to bearer is the owner of the note and entitled to collect it. Paris v. Moe, 60 Ga. 91; Walton Guano Co. v. McCall, 111 Ga. 114 (36 S. E. 469).

2. This first payment of $40 was not only made to Mrs. 'Butler, the holder of the note, but was indorsed as a credit on the note, and therefore there can be no sort of question but that this was a valid payment on the note, not only because it was paid to the party who held it, but because the amount was actually credited on the note; and the plaintiff claimed only the balance on the note after this payment had been deducted from the face thereof. The second payment of $40 was made three months after the first payment, and at that time the maker of the note, who paid it to the son of Mrs. Butler for her — Mrs. Butler admitting that she had received the payment — did not know absolutely that Mrs. Butler *482still held the note; but, as she did hold possession of it on the occasion of the previous payment, it was reasonable and fair to presume that she continued to hold the note, as she was still collecting on it; and this presumption is aided by her statement, made as a part of the res gestie, that she did have the note at her home. At least, these facts were sufficient to raise a presumption that she was entitled to receive this payment because the note was still in her possession, and to shift the burden to the plaintiff of showing that she did not have the note in her possession at the time of this second payment, and was not authorized to collect it. Now, as to the payment of $10 made to the son, there is no evidence that he had the note in his possession when the payment was made, or was authorized to collect it.

As to the payment of the $15.72 made to the attorney for .the plaintiff after this suit had been filed, this was unquestionably a valid payment, because it was made to the attorney of record for the plaintiff, the payee and holder of the note at the time the suit was filed and when payment was made.* Leaving out of consideration the first payment of $40 credited on the note and the last payment of $15.72, made to the attorney of record for the plaintiff, the evidence as to the validity of the other payments did not 'authorize the direction of a general verdict for the defendant.

Judgment reversed.