Rehearing
ON MOTION ROE REHEARING.
In their motion for rehearing counsel for the bank insist that it was error to grant a new trial because the evidence demandеd a verdict for the plaintiff bank. Their contentions are, in effect: (1) that any agreement that the second note should extinguish the first must have been embodied in the second instrument itself, or be set forth in an independent writing; (2) that there must have been an exрress contract as to such extinguishment, and the testimony of the defendant as to what the bank cashier said when the secоnd note was given was not sufficient to show any such “agreement;” (3) that the testimony of the defendant, construed most strongly against him, shоwed that no such agreement was in fact made; (4) that “the action of the board of directors is in writing, produced at instanсe of and introduced by the defendant,” and the testimony of the vice-president and director of the bank that it was his “understanding thаt the mortgage note was given and passed upon by the directors of the bank, to take the place of the notе here sued on,” was without probative value.
1. The first of these contentions has been dealt with in the slightly modified first note of the syllabus.
2. As to the remaining contentions, we think that the evidence fails to show that the verdict was demanded in favor of the plaintiff оn the question whether or not it was the understanding between the plaintiff and the bank that the second instrument was given in substitution for and in extinguishment of the first. When first on the stand, the defendant swore that the first note was executed as a “temporary note” in an emergency, which, he explained, was to enable him to unload a car-load of corn. When recalled to the stand, he swоre that when the first note was executed the cashier said he would have the mortgage note ready later, and when it wаs fixed it would “do away with this temporary note;” and that later, at the time of the signing of the second note and mortgage, the сashier said, “This will kill the little note.” We do not think that the defendant's testimony comes within the rule invoked by counsel, although it is true, as shown by mоvant, that the defendant,
We think that the defendant’s evidence as to the transaction prevented a verdict being demanded for the plaintiff. But there was also other evidence. Upon movant’s contention that there was no testimony, other than the defendant’s, as to'the alleged agreement of satisfaction, we аre of the opinion that the testimony of the vice-president and a director of the bank was sufficient to make a jury issuе. He testified that he “was a director of the bank at the time and passed on these loans,” and “it was my understanding that the mortgage note was given and passed upon by the directors
Lead Opinion
1. “Although, under our statute and the general rule, ‘bank cheeks and promissory notes are not paymеnt until themselves paid’ (Code, § 20-1004), they nevertheless constitute payment if the creditor has agreed to accept оr has received them as such.” Nash Motors Co. v. Harrison Co., 52 Ga. App. 333, 335 (
2. In this suit by a payee bank against a maker on an unsecured promissory note, the evidence did not demand a verdict in favor of the bank against the defendant’s plea that the original note sued on was satisfied by the substitution of a subsequently signed mortgage note. Therefore, the verdict directed in favor of the plaintiff bank not being demanded, the court did not err in granting a first new trial on motion of the defendant. Judgment affirmed.