158 Ga. 350 | Ga. | 1924
The First National Bank of Marietta brought its suit to the November term, 1922, of Cobb, superior court, against George W. Gibson and Mrs. M. L. Gibson, on a promissory note for the principal sum of $5,050, dated October 21, 1920, and due on demand. It was alleged that no part of -the note had been paid, but interest had been paid thereon to December 30, 1921. The prayers of the petition were, for judgment against G. W. Gibson for the principal, interest, and attorney’s fees, and for the recovery of a special verdict and judgment against certain described personal property. There was also a prayer that certain deeds executed by G. W. Gibson to Mrs. M. L. Gibson be declared fraudulent and void, and that they be cancelled. Answers were filed by, G. W. Gibson and by Mrs. M. L. Gibson. Demurrers to the answers were filed, some of which were sustained and some overruled. The trial proceeded, and at the conclusion of the evidence the court
Mrs. M. L. Gibson was made a joint defendant in the case, because she was a necessary party inasmuch as equitable relief was sought against her, the plaintiff in its petition having attacked as fraudulent and void certain deeds executed by G. "W. Gibson to Mrs. M. L. Gibson. But before argument began, the issue made under the allegations of fraud in the execution of the deeds and the denial of the fraud was eliminated by certain admissions made by the defendants; and it is not necessary to consider the questions made in regard to the deeds, nor any of the questions made by the answer of Mrs. Gibson. Under the issues left after the elimination of those relating to the attack made upon the deeds, it is only necessary to consider and determine the questions made by the answer of the other defendant and the demurrers thereto. He, after filing his original answer, submitted various amendments. There were demurrers to his answer and to the. amendments submitted, each of them containing several grounds. It is not necessary to set out the petition and the answer in extenso. The answer to the petition and the demurrers to the answer and the amendments make two questions relating to the vital issues of the case: In the first place, the defendant, in the answer filed, set up the defense that he was induced by the plaintiff, through its cashier D. R. Little, to execute the note sued on, “with the distinct understanding and agreement between the defendant and Little and one Brown [whose relation to the case will be indicated later on] that the execution of a bill of sale to the bank by Brown would operate as payment of the note.” Upon demurrer, the part of the answer setting up this defense was stricken; and to the judgment of the court striking the defense just stated the defendant excepted.
The court did not err in sustaining the demurrer to that part of the answer of the defendant setting up the defense thus stricken. In the first place, this part of the answer was an attempt to contradict and vary an unconditional written promise to pay a certain sum of money, by setting up a contemporaneous parol agreement contrary to the writing. And parol evidence is inadmissible to add to, take from, or vary a written contract. Civil Code, § 4268 (1). In the case of Dendy v. Gamble, 59 Ga. 434, which was a suit against principal and surety on a note, this court said: “The
In an amendment to the answer George W. Gibson set up the defense that there was an agreement made between plaintiff, through its cashier, and L. H. Brown and the defendant, which was in substance an agreement that upon the execution of the note sued on the plaintiff would advance the amount of the principal, the price of certain tractors, and that L. II. Brown should execute and deliver to plaintiff a bill of sale to the tractors, and that said bill of sale should be received by plaintiff, in payment of the note; and further, that the bill of sale referred to was in fact accepted by the bank subsequently to the execution of the note and at the time the bill of sale was executed in payment of the note. This part of the defense was also demurred to, and the court sustained the demurrer to all the allegations setting up the alleged parol agreement or understanding entered into at the time of the execution of the note sued on, but overruled the demurrers to the allegations in this part of the answer which showed that the bank had, subsequently to the execution of the note, and at the time the bill of sale was executed, accepted the bill of sale in satisfaction and settlement of the note. It follows from what we have said that the court did not err in sustaining the demurrers to all of the' allegations setting up the defense based upon the parol agreement made at the time of the execution of the note. The authorities cited above need not be cited here again; but in connection with those authorities the ruling in the case of Cole v. Bank of Bowersville, 31 Ga. App. 435 (120 S. E. 790), is appropriate and pertinent. It was there said: “A note in which it is stipulated that a certain sum will be paid means that this sum will be paid in money, and the maker or the indorser will not be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money.” See also Kerr v. Holder, 13 Ga. App. 9 (78 S. E. 682), and cases cited. The court permitted the pleaded defense to stand, that, subsequent
In one ground of the motion for new trial error is assigned upon the ruling of the court which excluded the answer of the defendant to the following question propounded by his counsel: “State whether or not you had a conversation with Mr. Little after they took this bill of sale, and whether or not he acknowledged the payment of this note ?” The answer of the witness was, “He said he would take the bill of sale, and that would pay the note.” It is insisted that the exclusion of this evidence was error, because “it was competent and material to show that said note, which was the note sued on, was to be paid off and settled by the taking of the bill of sale, and for this reason the exclusion of the evidence was error.” While apparently, if we consider the question alone, the conversation referred to by the witness was had with Little, the cashier of the bank, subsequently to the taking of the bill of sale, as a matter of fact it was contemporaneously with the execution of the note that Little said he would “take the bill of sale, and that would pay the note;” for the witness distinctly stated, “This occurred at the time that he signed the note.” And this assignment of error is disposed of by what we have said above.
The rulings made in headnotes 4 and 5 require no elaboration.
The motion for new trial contains the exception that the court erred in directing a verdict, under .the evidence in the case. The court did not err in directing a verdict in favor of the plaintiff. There is no merit in the contention that the note was without consideration. Conceding that Gibson, the defendant, had no interest in the tractors which had been shipped to Brown upon a bill of lading with sight-draft attached, and that the note was given for the money with which to meet the sight-draft so that the tractors could be delivered to Brown, and that Gibson’s only interest in the tractors was as a salesman and a demonstrator, nevertheless he procured the money from the bank, if not for himself, for another, and this was consideration sufficient to support the note.
The other plea, which was in substance that subsequently to the execution of the note the bank accepted the bill of sale in payment of the note, was not supported by the evidence. It is insisted in the
Taking the entire testimony together, it required a finding that the bill of sale was executed to secure the payment of the Gibson note, and it was not intended to lie an unconditional sale passing title to the tractors into the bank. This being true, a verdict for the plaintiff under the evidence was demanded, and the court did not err in so directing the jury to find.
Judgment -affimed.