Coker v. Citizens Bank, 35 Ga. App. 595

Coker v. Citizens Bank

35 Ga. App. 595 | Ga. Ct. App. | 1926

Jenkins, P. J.

Defendant Coker, a resident of Rome, Georgia, operated a shoe store in the City of Gainesville in a building which he leased from the Imperial Pharmacy, of which J. W. Jacobs was proprietor. His lease was at a monthly rental of $50, and had eight or ten years to run. He approached Jacobs in August, 1922, with a view to securing a cancellation of the lease, and offered Jacobs $1,000 in settlement of some $400 back rent then due, and to release him from future liability, which was refused. Barron operated a restaurant in the- City of Gainesville; and on December 5, 1922, Barron and defendant’s son, who was operating the shoe store for defendant, went to Rome where Coker lived, and Barron and Coker entered into a written agreement whereby Barron took over defendant’s lease on the shoe store, and defendant took over Barro-n’s lease on the restaurant, and purchased the restaurant equipment, which Barron stated to him was worth seven or eight thousand dollars. Coker agreed to pay Barron, in consideration of this purchase and exchange, the sum of $4,000, of which he then paid $500 in cash. Defendant demanded of Barron the keys to the restaurant on that occasion, and they were delivered, and at the direction of defendant his son took immediate charge and control of the restaurant in Gainesville, and thereafter operated it for the defendant. ' Coker made a trip to Gaines-ville on January 5, 1923, and on that occasion executed to Barron a note for $3500, dated December 6, 1922, and maturing January 28, 1923. Hpon the execution of this note, and in fulfillment of *598the terms of the previous contract referred to, Barron procured the cancellation of Coker’s lease with the pharmacy by agreeing to pay the pharmacy $2150 from the proceeds of Coker’s note. It appears that Barron was insolvent and owed the plaintiff bank the sum of $500, for which it had no security; that the pharmacy also owed the bank $1,000, and that the proprietor of the pharmacy, Jacobs, owed the bank $415.81, none of wliich debts was secured. Coker’s note was indorsed by Barron and by the pharmacy, and delivered to plaintiff bank as collateral security for the debts thus mentioned as owing to it. It thus appears that at the time the suit was filed the different interests in the note were held as' follows: Citizens Bank of Gainesville, $1915.81; Imperial Pharmacy $734.19; Barron, $850. This purchase-money note contained a title-retention agreement, and the plaintiff bank as holder, after default therein, levied a purchase-money attachment on the restaurant fixtures and equipment, and they were sold for $519.75 at sheriff’s sale, which sum remained in the hands of plaintiff, no credit being given on the note therefor. Upon suit being instituted on the note by the bank, Coker filed a defense in which he admitted the execution of such a note, but denied that the plaintiff was the bona fide, owner and holder of the same. He set up that plaintiff had paid no consideration for the note, and that the note was obtained from him by the fraud and conspiracy of Barron, Jacobs, and the bank through its officers and agents; that Barron misrepresented the value of the restaurant property to him when the trade for the same was made; and that he bought it on condition that it should, on examination by him, prove to be worth seven or eight thousand dollars; that the bank knew all about the transaction; and that when he went to Gainesville about January 5, Barron and Jacobs, and the bank through its officers and agents, got him drunk and obtained the note from him when he did not know what he was doing. The evidence was in conflict as to whether Coker was drunk at the time the note was signed, and as to whether Barron had furnished him any liquor.

The judge directed a verdict in favor of the plaintiff as to the interest in the note owned by it, but submitted to the jury the issues of fraud and duress as relating to the interests owned by Barron and the pharmacy company. The jury found for the plaintiff on all these issues, allowing credit for the proceeds of the *599sheriffs sale. Defendant’s motion for a new trial was overruled, and he brings error. Our rulings on the grounds of the motion appear in the syllabus.

Judgment affirmed.

Stephens and Bell, JJ., concur.