92 Ga. 149 | Ga. | 1893
1. Mrs. Liebscher contended that the note for $1,500 now in controversy, dated November 5, 1890, was given for the purpose of taking up two notes she had previously given as accommodation maker for Cartwright, one for $3,000, dated April 15, 1889, and the other for $1,514.67, dated September 10, 1889, the former being given only as a collateral upon which no value was realized, and the latter having been negotiated by Cartwright, who received the benefit of its proceeds. On the other hand, it was insisted that Mrs. Liebscher herself received the money on the note for $1,514.67. Even if she did, there can be no doubt that it was used for Cartwright’s benefit, so that really her legal relation to him was that of surety only. Her defence to the note upon which she was sued was, that prior to the making of the same, but without her knowledge, Cartwright had fully settled the previous indebtedness for which she was liable as stated, and that therefore the note sued on was entirely without consideration. Counsel for the plaintiff complained of the refusal of the court to allow Mrs. Liebscher, when on the stand as a witness, to be asked whether or not she had inquired of Cartwright, before she gave the note sued on, if he had in fact paid off' the original note for $1,514.67 given by himself and her to the plaintiff Exception was also taken to a charge of the court, to the effect that if Cartwright had settled his indebtedness to Mrs. Pettyjohn, and Mrs. Liebscher, in ignorance of this fact, gave the note in controversy in settlement of this same indebtedness, she would not be liable. There was no error in
2. Cartwright testified that, being indebted to Petty-john upon a note for $5,500, secured by a mortgage, and being financially embarrassed and about to fail, he went through the form of a sale to Pettyjohn, by the terms of which the bar-fixtures, a stock of liquors, and other property, were turned over to Pettyjohn with the understanding that after paying himself, he was to hold the balance of the property for Cartwright. It appeared from other evidence introduced that Pettyjohn was acting as agent for his wife, and that the indebtedness mentioned was really due to her. Objection was made to the foregoing testimony of Cartwright, upon the ground that the admission of it would be in violation of the rule of law which forbids the contradiction of a written contract by parol testimony. The only writing relating to this transaction was an entry on the back of the $5,500 note in the following words: “1889, August 22. Paid by sale of stock on this note, $2,666. [Signed] L. 13. Pettyjohn.” This was no contract at all. It was simply a receipt, or credit, for a payment on a note. But considering it as a contract, it was not signed by Cartwright, and there is no rule of law of which we are aware which would prevent his explaining by parol the meaning and purpose of the entry.
3. If the testimony of Cartwright, which we have just ruled was properly admitted, be taken as true, Petty-john could have realized from the property turned over to him by Cartwright in only one of the two ways: either selling the property and applying the proceeds to the payment of the debt due by Cartwright to Mrs. Petty-
4. Pettyjohn testified that the stock of liquors was. actually accepted, at $2,666.40, “ as so much payment on account, and that the credit of this amount on the $5,500.00 note was made in the presence of Cartwright,, who fully agreed thereto, on August 22, 1889. He further testified: “ Prom that day on, I ran the bar. I soon got tired of it, and told Mr. Cartwright, who was still there, that I did not want to make any money out of him, and that all I wanted was that he should pay me what he owed my wife, and if he could take the property and work her debt out of it, which he said he could,. I was willing he should have all that was left.” According to Pettyjohn’s testimony, after the date last mentioned, Cartwright and his brother conducted the barroom business for a considerable time under the direction and supervision of Pettyjohn, who claims to have bought all that was needed to carry on the business, paid taxes, license fees, rent, and other expenses, up to the 6th of November, 1890. The plaintiff offered to prove that the property was thereafter sold under a tax execution, and' bought by herself for $1,315.75, the object
5. The rule announced in the fifth head-note is supported by Chat., Rome & Columbus R. R. Co. v. Owen, 90 Ga. 265, 15 S. E. Rep. 853. See authorities therein cited. Judgment reversed.