American Bank & Trust Co. v. McIntire

30 Ga. App. 593 | Ga. Ct. App. | 1923

Broyles, O. J.

1. “ Where a negotiable promissory note payable on its face at a bank is indorsed by the payee, whether for value or for accommodation, lie is entitled to notice of nonpayment and of protest, as provided for by section 2781 [section 4280 of the Civil Code of 1910] of the code.” Apple v. Lesser, 93 Ga. 749 (21 S. E. 171); Aldine Mfg. Co. v. Warner, 96 Ga. 370 (23 S. E. 404); Sibley v. American Exchange Bank, 97 Ga. 126 (4), 145 (25 S. E. 470). And such “notice is a condition precedent to his liability, and must be averred and proved.” Hall v. Davis, 41 Ga. 614. See also, in this connection, Ennis v. Reynolds, 127 Ga. 112 (56 S. E. 104).

Decided July 10, 1923. Seabroolc & Kennedy, B. A. McWhorter, for plaintiff. Mclntire, Walsh & Bernstein, for defendant.

2. The petition in the instant case — a suit upon a promissory note — shows affirmatively that the defendant was an indorser upon the note whose indorsement was essential to a due transmission of title, and, the petition containing no allegation as to notice of nonpayment and protest, the court did not err in ordering the case dismissed unless the plaintiff supplied this omission by amendment within seven days; and, no such; amendment having been filed, the ease subsequently was properly dismissed on demurrer.

(a) This is true although the plaintiff amended its petition by alleging that the defendant was liable “ as surety,” and not “ as indorser,” on the note sued upon. The allegations of the amendment amounted to a mere conclusion of the pleader, which was not sustained by any facts appearing upon the face of the pleadings.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.