182 Ga. 540 | Ga. | 1936
The Court of Appeals requested instructions from the Supreme Court on the following question: “In a suit on a note signed by a corporation at the bottom, prima facie as maker, and by a married woman on the back, prima facie as blank indorser, where the note was executed and the case tried after the adoption by this State of the uniform negotiable-instruments law and prior to the adoption of the present Code of 1933, can a verdict in favor of the payee plaintiff against the married woman be sustained under the provisions of section 5796 of the Code of 1910 (re-embodied in the Code of 1933 as section 38-509), despite the provisions of the negotiable-instruments law now embodied in the Code of 1933 as sections ,14-604 and 14-605 (Ga. L. 1924, p. 139), where the petition shows, and is supported by parol proof admitted without objection, that, while she merely signed her name on the back of the instrument, she was in fact a principal and expressly contracted as such; and where, on exceptions taken to this court by the married woman, the provisions of the negotiable-instruments law embodied in the present Code as §§ 14-604, 14-605, are not invoked? See Code of 1933, §§ 14-604, 14-605, containing sections 63 and 64 of the negotiable-instruments law; Code of 1933, § 38-509 (Code of 1910, § 5796); Brannan’s Negotiable-Instruments Law (Beutel’s 5th ed.), 716 et seq.; Notes in 37 A. L. R. 1222; 35 A. L. R. 1120; 22 A. L. R. 527; 11 A. L. R. 637; Lamar v. Allen, 108 Ga. 158, 165 (33 S. E. 958); Code of 1933, § 38-114; Supreme Lodge v. Gardner, 19 Ga. App. 58 (4) (90 S. E. 986); Swanson v. Mobley, 33 Ga. App. 791 (127 S. E. 806).”
The Code of 1910, § 5796, provides that “Blank indorsements of negotiable paper may always be explained between the parties themselves, or those taking with notice of dishonor or of the actual facts of such indorsements.” This provision appeared for the first time in the Code of 1863, and was embodied in each of the subsequent Codes. Following this section are many decisions of this court applying its provisions. Hardy v. White, 60 Ga. 454; Neal v. Wilson, 79 Ga. 736 (5 S. E. 54); James v. Calder, 7 Ga. App. 707 (67 S. E. 1125); Taff v. Larey, 29 Ga. App. 631 (116 S. E. 866); Seymour v. Bank of Thomasville, 157 Ga. 99 (121 S. E. 578); Sanders v. Ayers, 155 Ga. 630 (117 S. E. 651). In 1924 the General Assembly passed the negotiable-instruments law,
There is no direct ruling by this court on the question, and the decisions in outside jurisdictions are not uniform, some holding the provision in the negotiable-instruments law does not admit of parol evidence to explain the circumstances of the indorsement, while others hold to the contrary. See note in 37 A. L. R. 1222 et seq. However, it does not appear, in the cases holding that parol evidence is not admissible, that there was a prior statute in the State permitting parol evidence to explain an indorsement as between the parties. As will be observed, section 5796 (§ 38-509) has application between the parties, or those taking with notice of dishonor or of the actual facts of such indorsement, and has no application to the rights of third parties; while the provision of the negotiable-instruments act makes no reference to the interest of the parties. Under a proper construction of the two statutes, the provisions of the negotiable-instruments act would apply to innocent 'third parties taking without notice; and thus construed the provisions are harmonious. As between the parties, or those taking with notice of dishonor or of the actual facts, parol evidence would be admissible to explain a blank indorsement; while innocent third persons taking without notice or of the actual facts would have no such right to explain the indorsement. It will be noted that the negotiable-instruments law provides that “a person placing his signature upon an instrument other than as maker . . is deemed to be an indorser,” etc. It does not state whether as between the parties, after dishonor, or as between innocent third parties. The word “deemed” is not a word of fixed or definite meaning, as used in this statute. In 2 Words and Phrases (3d ser.), 887, are a number of cases defining the term, some defining it as a conclusive presumption, others that it is an inconclusive presumption, or prima facie.
In the case of Long v. Gwin, 202 Ala. 358 (80 So. 440), the Supreme Court of Alabama held that “ Prior to the adoption of
In the above view of the question it becomes unnecessary to answer the further questions, with reference to the introduction of parol testimony without objection, and the subsequent exception thereto in an appeal of the case.