40 Ga. App. 291 | Ga. Ct. App. | 1929
This was a suit by the holder of certain promissory notes against the maker. A judgment was rendered for the plaintiff in the amount sued for. It appears that the notes were given to a corporation in renewal of notes given for the purchase of certain shares of its corporate stock, and transferred to the plaintiff long after maturity, as collateral for a debt of the corporation to the plaintiff, less than the amount of the notes. It appears that the defendant had not rescinded, or offered to rescind, the contract of purchase and sale of the stock, but had renewed the purchase-money notes, and that several years had elapsed between the renewal of the notes and the filing of the suit. The defendant pleaded nondelivery of the notes, failure of consideration, and false and fraudulent representations, and sought, by amendment, to set up that the notes sued on were null and void because given in renewal of notes executed in January, 1920, for corporate stock the sale of which was prohibited by the Georgia “blue-sky law” then of force, it was further contended on the trial that under the evidence the transfer of the notes to the plaintiff constituted a split assignment, upon which an action could be maintained only in equity, and that in no event could a recovery 1)0 liad by the plaintiff for more than the debt owing by the payee to the plaintiff. Exception is taken to the charge, and to the failure to charge, with reference to the burden of proof.
The act of 1913 commonly known as the “blue-sky law” (Ga. L. 1913, p. 117; Park’sAnnotated Code (1914), § 2909 (a) et seq.),
Where in a suit on a promissory note the defendant admits the execution of the note, and the receipt of the notice required by law for the recovery of attorney’s fees, but sets up an affirmative defense, and there is no proof tending to show that the plaintiff, who sues as a transferee, is not the lawful holder of the note, and it is not contended by the plaintiff that it occupies the position of a bona fide holder for value, the parties occupy the same positions as if the suit had been instituted and maintained by the original payee of the instrument. In such a case the only issue to be determined by the jury is whether or not such defense has been established by the defendant’s evidence; and it was not error for the court to charge the jury that the burden was upon the defendant to establish such defense by a preponderance of the evidence. Nor was it error for the court to fail to instruct the jury as to the original burden of proof resting upon the plaintiff, since there was no issue made blithe pleadings and evidence upon the prima facie right of the plaintiff to recover. The admissions by the defendant and the introduction of the notes made a prima facie case for the plaintiff, and entitled it to recover the full amount sued for unless the defendant was successful in establishing his affirmative defense.
“ Where creditors make a full written assignment of their claim to a third person, although it be to secure a lesser indebtedness of theirs to the assignee, the assignment vests in the assignee the full legal title to the entire chose in action; and in such a case the assignee is vested with the right to maintain an action for the full amount of the chose in action, being charged with the duty of holding the excess, above the amount of the secured debt, as trustee for the assignors.” Brown v. West, 35 Ga. App. 444 (133 S. E. 304). The rule is different where there has been only a partial assignment of the chose in action; in such a case the transfer is good as a legal assignment only when it has been assented to by the debtor. When he has so assented, separate suits at law may be maintained by both the assignor and the assignee for their respective
The evidence upon the issues raised by the defendant’s plea authorizes the verdict in favor' of the plaintiff, and, under the foregoing rulings, no error of law was committed by the court in ruling upon the proffered amendment by the defendant setting up the invalidity of the notes because of the provisions of the act of 1913 cited, or in charging the jury or in failing to charge with reference to the burden of proof, or in refusing the defendant’s request to charge that the plaintiff could not recover more than the amount of the debt secured by the pledge to it of the notes sued on.
Judgment affirmed.