Johnson v. Cobb

100 Ga. 139 | Ga. | 1897

Little, Justice.

The error alleged to have been committed by the court helow, -and which is sought to be corrected here, is that the court sustained a demurrer to the plea interposed by the plaintiff in error (who was the defendant below) in bar of the action. The report of the case given above sets out in brief the contents of the stricken plea, and it is material only ‘to consider the three main propositions which it sets up, to determine its merit as a defense.

1. The plea alleges, that before miakin'g and delivering -.the note which was given in payment of premium on a policy insuring the life of the defendant, he made a contract with the plaintiff that when the note fell due, defendant was to have the right to- cancel the policy, and when the-note matured he did so cancel it. This plea does not go far-enough, even if its averments were good in the way of defense; it is not alleged that such contract was in writing; even if it was, it is not a stipulation of the contract tlxat.the note was to be canceled with the policy of insurance. But assuming such to be the intendment of the pleader, such a ■parol contract, if proven, could not prevent a recovery. The terms of the note- constitute a plain unconditional promise at a stipulated date, to pay to the order of the maker a given sum of money, for value received, -and was-endorsed by the maker in blank.

The plea, if sustained, w-o-uld alter and vary the terms of' this written contract, so as to make its payment uncertain and dependent on the election of the maker at its maturity. Such could not be done, and parol evidence o-f such contract would not be admitted so to vary its terms; and if the ■evidence would not be admitted, -the plea was properly stricken. We do not deem it necessary to cite -any -authorities to support a proposition so clear and manifest.

2. In his pleia, which was in the nature of an answer by paragraphs to the petition, the plaintiff in error makes a. general denial of the indebtedness claimed in the petition. Aside from this, no- part of the -answer sets out any facts ■ which constitute a legal defense. This denial in general ■terms is hut a plea of the general issue, which, since- the-act of 1893 (Acts 1893, p. 56), is not issuable and is not a denial of the plaintiff’s right to recover, under the system of ’ defenses provided by that act.

3. The plea set out the further fact, as denying the right' of the plaintiff to- recover, that the plaintiff was not timbona fide holder of -the note sued on. But how could this, if proven, affect him under -the facts set out in his plea. Section 3698 of the Civil Code declares, that the title of’ the holder of a -note cannot be inquired into', unless it is for the protection of the defendant, or to let in the defense which he seeks to make. The defenses which the defendant sought to' make were all set out in his plea or answer, and from a legal standpoint constituted no defense. Haring then no legal defense to' the note, it was immaterial to him who held it. Being a negotiable instrument, its payment to the holder satisfied it (no fraud being charged); and being bound for its payment in 'the bands of any one, so far as the plea shows, the defendant would not be heard to' allege that the plaintiff was not its bona fide holder.

The judgment of the court below in striking the plea is Affirmed.

All the Justices conmrrmg, except Cobb, J., disqualified.