49 Ga. App. 358 | Ga. Ct. App. | 1934
This is a suit bjr an executrix against a widow for the principal sum of $3434 upon a promissory note, by which she obligated herself to pay a debt owing by her deceased husband to the plaintiff’s testatrix. A verdict and judgment were rendered in favor of the defendant. It is undisputed that the note was given by the widow for a debt which had been contracted by the husband. There was no testimony to indicate that any agreement existed between the creditor of the deceased husband and the widow herself that her note was to be taken in extinguishment of the creditor’s claim against the husband’s estate. On the contrary, the evidence indicates that the defendant herself had no conversation at all with the creditor or any one representing the creditor with reference to the transaction. The defendant testified that “he [the administrator] just told me, when I inherited half of my father’s estate, the nice thing to do was pay it when I could, and I just thought that was the thing to do, and I just signed it.” It appears, however, from the evidence of the creditor’s agent that the note was delivered to him by the administrator of the husband’s estate, and that, “prior to his actually giving me the note, he had stated to me he would give it to me, provided I would withdraw the claim.” The evidence shows that, upon the delivery of .the widow’s note by the administrator to the agent of the creditor, the creditor’s agent then actually withdrew and destroyed the claim against the estate, with the result that the creditor did not share
Exception is taken to the instruction that the plaintiff “says there was a consideration for this note, and before you can find for [her], you must believe there was a legal consideration for the note,” that “the written promise to pay a note given without consideration is not itself binding on the promisor,” that “before a note can be binding on any person, there must be a legal consideration, and if you find in this case there was no consideration, there is no binding obligation on [the defendant] to pay it,” and like charges, as failing to charge the principle that, where a note is given under seal, a valuable consideration is presumed, and as placing the burden of showing a consideration upon the plaintiff. While it is true that a note prima facie is issued for a valuable considera
The court charged as follows: “You have got to determine whether, under all the facts and circumstances of the case, [the administrator] was the agent of [the defendant] in the giving and receiving of this note. If you believe [the administrator] was the agent of [the defendant] in the giving and receiving of the note, and that by reason of the giving and receiving of the note a detriment was done to [the creditor], then you should find against [the defendant], and in favor of [the plaintiff]. If you do not believe "that [the administrator] was the agent of [the defendant], you should stop right there and quit and say, ‘We, the jury, find for the defendant. But in case you do find that he was the agent, you must go a step further and also find from the evidence in the case that there was a detriment done to [the creditor]. Exception is taken to the statement that, if the jury should determine the question of agency in favor of the defendant, they should go no further, but find in her favor. It is contended that the note was supported by a consideration independent of any agreement by the defendant or by her alleged agent on her behalf; that the mere fact of widowhood and the assumption of the legal debt of the husband would of and in itself constitute a valid consideration. Since, under the Tulings in the 1st, 2d, and 3d divisions of the syllabus, this
Exception is also taken to those parts of the quoted instructions and similar instructions which refer merely to a “detriment” to the creditor, as thereby erroneously excluding the element of benefit to the widow. The evidence shows, without dispute, that the creditor in fact suffered detriment by withdrawing her claim against the insolvent estate, thereby failing to share in the distribution received by other creditors. If this had been done in accordance with an understanding had with the widow, a consideration for her promise would be shown. The detriment is undisputed. The question was, did the widow, by her authorized agent, contract for such conduct on the part of the creditor? "Was it she, or was it only the administrator of the estate, who required that the claim against the estate represented by the administrator should be surrendered ? This was the question, and it appears to have been the only question, made by the evidence. Although there was testimony by the creditor’s agent that it was at about the time the year’s support was being applied for and allowed that the administrator made the proposal that the note would be given if the claim against the estate Was withdrawn, the note was not delivered until long after the allowance of the year’s support; and there was no evidence that the agent of the creditor offered or agreed with the alleged agent of the Widow that the creditor would not contest the year’s support if the note was given, as was the case in Golding v. McCall, supra, or that there was any such implied idea or understanding in the minds of the creditor’s agent and the alleged agent of the defendant. The evidence for the plaintiff goes no further than to show that, after the administrator’s proposal to give the note if the claim against the estate was withdrawn, the creditor did nothing except to tear up the claim when the note was delivered in the fall of the year after t-he year’s support was allowed in July. Neither the creditor nor her agent ever filed any objection to the year’s support or its