15 Ga. App. 103 | Ga. Ct. App. | 1914
Leon Chason, as administrator of the estate of D. W. Chason, brought suit against Aaron Andrews on several promissory notes, aggregating the principal sum of $880, and containing a recital of “value received.” The notes provided for the payment of ten per cent, additional as attorney’s fees, and the petition alleged that proper notice had been given to bind the defendant therefor. The defendant filed a plea in which he admitted that the plaintiff was the duly appointed administrator of the estate of the decedent, D. W. Chason, that the notes had been executed as alleged in the petition, and that the estate of D. W. Chason was the owner thereof, but denied that he had been served with proper notice to bind him for attorney’s fees, and alleged that the notes were given for money which the decedent agreed to advance to him, but that the decedent died without having advanced the money to him, and therefore the consideration wholly failed. The record shows that the plaintiff proved, without objection, that he had given due and legal notice of his intention to bring suit on the notes, and to demand ten per cent, attorney’s fees as provided for therein. The de
It is a well-settled rule that negotiable promissory notes are presumed to have been given for the consideration therein recited;
The testimony of the former president of the bank, in reference to a check for $880, drawn by Chason, the decedent, in favor of the defendant, and apparently indorsed by the defendant and cashed by .the bank on the day following the execution of the several notes sued upon, failed to show any connection whatever between this check and the notes sued upon, except what may have been inferred from the fact that the amount of the check was identical with the aggregate principal sum of the notes, and from the further fact that the check and the notes bore the same date, and the check appeared to have been cashed on the following day. Assuming that the jury would have accepted the defendant’s evidence to the effect that he had never received the amount of the check from the bank, and had never indorsed or cashed the check, and taking into consideration the evidence of Brannon, who testified that he could not say whether the check had been actually paid or not, but could only say that he witnessed the signature of the defendant, and that the check purported to have been paid, nevertheless the jury would not, on account of the defendant’s testimony or of the lack of positive evidence that this particular check had been paid, have been authorized to' find in favor of the defendant, since the presumption of a consideration which the notes themselves carried would not have been successfully rebutted or overcome by any or all of this testimony.
If it be true, as set out in the defendant’s plea, that he never received any consideration for the several notes sued upon, it was unfortunate that he should have executed and delivered his notes to the deceased before actually receiving the consideration therein recited; but if so, and if the fact that the law prevents the defendant from testifying against the interest of the decedent as to transactions between them brings hardship, he can, after all, charge only himself with blame, because of his neglect of ordinary business precaution, and he can not properly inveigh against a just law, based on sound sense and wise public policy. It is hard to believe, however, that the defendant actually failed to receive the consideration named in the notes, especially as the evidence fails to disclose that the deceased plaintiff departed this life immediately or even very soon after the notes were executed and delivered to him; and we may not reasonably assume that the defendant would have allowed the notes to remain in the hands of the decedent for an indefinite time after their execution, without either calling for and receiving the agreed consideration or demanding and receiving back the notes themselves. However this may be, we can only enforce the law as it is; and since the testimony demanded the verdict, and the action of the trial judge which is complained of could not have affected