Caldwell v. Duplex Printing-Press Co.

16 Ga. App. 608 | Ga. Ct. App. | 1915

Bussell, C. J.

The plaintiffs in error, having been sued upon a promissory note, filed a plea of failure of consideration. They had the right to -do this whether the note was under seal or not (Sims v. Scheussler, 5 Ga. App. 850 (64 S. E. 99), and the court would have erred in directing a verdict if there had been any testimony tending to show a failure of consideration. “A verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal standpoint, can sustain no other finding than that directed.” Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209). But a judge may direct a verdict when there is no issue of fact; and we think that in the present case the judge correctly held that there was no issue as to the only plea filed by the defendants. The sum and substance of the testimony in’ behalf of the defendants (who admitted the execution of the note) is that they received no benefit from the execution of the note. The fact that the consideration they received was of no benefit to the defendants because, on account of a change in their plans or an alteration of conditions in Atlanta, they no longer desired the printing-press which they had purchased, and therefore .their contract of purchase was of no value to them, did not establish the fact that the contract they secured was totally worthless to others at the time they procured this contract. The testimony in their behalf did not establish their contention that the notes were without consideration; for there was no testimony that the press which the defendants contracted to buy was worth less than the contract price or was for any reason defective, or that there was any unwillingness on the part of the vendor to ship the press, or that shipment was delayed for an unreasonable time. No other conclusion can be drawn from the testimony of the defendants than that, after purchasing the printing-press (a part of the purchase-price of which is represented by the note here sued on), they changed their minds and decided to make an effort to be released from the contract. The fact that something was said by one of the representatives of the plaintiff about claiming damages is wholly immaterial, because by bringing the present action the plaintiff elected to stand upon the contract.

There was evidence that one of 'the representatives of the plaintiff stated that the press had been sold to a party in Pennsylvania. However, there is no evidence in the record to show that the person making this statement was such an agent of the plaintiff as that his statement could be treated as an admission of the fact of a sale on the part of the plaintiff. Agency can not be proved by the mere declarations of one who claims to be an agent. But even if the admission as to the sale of the press be treated as 'authoritative, this alone would not release the defendants from payment of the note; for, according to the terms of the contract, they were required to pay the note before ordering the press to be shipped, and from their evidence it is perfectly plain that they had fully and finally determined never to order the press to be shipped. Even if the press had been sold, proof of this fact would not support a plea of failure of consideration. In Juchter v. Boehm, Bendheim & Co., 63 Ga. 72, it was held that the fact that the notes declared upon were given for the purchase of goods, and that the plaintiff, in violation of his agreement, foreclosed a mortgage to secure the same debt and caused the goods to be seized and sold, so that they were wholly lost, was not matter for a plea of total failure of consideration. To the same effect is the decision, in Dickson v. Tunstall, 3 C. P. R. (Pa.) 128, in which it was held that where a note is given to one person for the purchase of bank stock which a third person is bound to deliver, failure to deliver the stock is no defense to a suit on the note. Judgment affirmed.