1 Ga. App. 269 | Ga. Ct. App. | 1907
John H. Reynolds brought suit in a justice’s court, on four notes for $75 each, against James B. Nevin, maker, and the executors of Mrs. H. A. Nevin, deceased, as endorsers. From the judgment of the justice’s court an appeal was taken to the superior court, where the cases were consolidated; and the jury, by
The sworn pleas of the defendants in error in all of the cases were the same, as follows: (1) That defendants, and neither of them, are indebted to plaintiff in manner and form as in the summons alleged; neither do they nor either of them owe plaintiff anything. (2) And for further plea in this behalf the defendants, and each of them, individually and as representatives of the estate of Mrs. Helen A. Nevin, deceased, say, that plaintiff, John H. Reynolds, has no title in said notes which would authorize him to sue these defendants; that the said notes were originally given to Mrs. Myra A. Craigmiles; that after their maturity, on the 8th day of November, 1904, they were owned by and in the possession of the said Mrs. M. A. Craigmiles; that said plaintiff on that day had suit brought thereon in the name of Mrs. Myra A. Craigmiles, alleging title in her; that defense being filed by these defendants, said suit was dismissed; that this plaintiff, as agent of Mrs. M. A. Craig-miles, instructed said suit to be dismissed, and that no change in title has occurred since that time. Wherefore plaintiff is estopped to assert title in said notes. (3) And for further plea in this behalf, defendants say that said plaintiff, John H. Reynolds, on and from May 1, 1899, to and including May 1, 1904, was and still is the agent of Mrs.'M. A. Craigmiles; and that said J. H. Reynolds, during said transaction, from its inception to the present day, was not and is not the agent of these defendants, or either of them. (4) And for further plea in this behalf defendants and each of them show that the note sued on was one of a series of notes given by said James B. Nevin for interest, in semi-annual instalments of $300, on $7,500 borrowed from Mrs. Myra A. Craigmiles on May, 1, 1899; that said James B. Nevin agreed to pay interest at the rate
Plaintiff’s motion for new trial was as follows: (1) Because the verdict is against the evidence, and without evidence to support it. (2) Because the verdict is contrary to law. (3) Because, as movant contends, in directing said verdict, the court took from the jury the right to pass upon the evidence which had been introduced tending to show that the notes -sued on were the property of the plaintiff, and were kept by him as his property in the transaction, with the knowledge of and by agreement with J. B. Nevin, and the further evidence that said Nevin, after the change of the loan, knew that plaintiff held and expected him to pay the notes, and the other evidence on that subject. (4) Because the court allowed the
As we view this suit none of these assignments reach the vital, controlling question in the ease. The' defendant’s answer, if sustained by evidence, sets up-a good and valid defense to the collection of the notes, in that the consideration had totally failed; and the question arises, therefore, as to whether the evidence establishes this without contradiction or issue of fact. The judge may direct a verdict, but it is at his peril; for if there be one material fact at issue, the direction of the verdict is an error so harmful to the losing party as to demand a new trial. Of course, it need not be remarked that conflicts in the evidence as to matters immaterial are not to be considered. It does not appear to us from the record that there was a single conflict in the evidence as to the material matter of failure of consideration. And the defendants would be entitled to a verdict if the uncontradicted evidence established their plea of failure of consideration, even if it be true that they failed to sustain any or all other parts of their answer. So we will limit the right of the defendants to hold their verdict to their plea of failure of consideration, and consider that only. In the third ground of the motion for a new trial it is complained that “the court took from the jury the right to pass upon the evidence which had been introduced tending to show that the notes sued on were the property of the plaintiff, and were kept by him as his property . . , with the knowledge of and by agreement with J. B. Nevin,” and that “Nevin, after the change of the loan, knew that plaintiff held and expected him to pay the notes.” As this verdict was directed, in considering it we must take Reynolds’ testimony as the truth, and disregard any testimony which conflicts with it. And it is true that there was direct conflict between these witnesses (plaintiff and defendant) as to this point. But it was absolutely valueless which was right or should have been believed as to that (in determining whether the consideration of the notes had failed), in view of the perfect concurrence of the witnesses as to everything connected with the notes, up to and
There was conflict as to the agreement by which plaintiff was to keep, and the defendant be bound for, these notes. But reject altogether the testimony of Nevin (who denied that he made such an agreement) and take the testimony of Beynolds as the truth in toto, it is still uncontradicted that Beynolds was the agent of Mrs. Craigmiles,.and later, as holder or purchaser, stood in her shoes, with notes for a( sum of money which he knew, when he acquired them, represented unearned interest on a loan which had been repaid. And though. Nevin promised to be bound for the notes, that agreement is nudum pactum as to him, and certainly, in so far as Nevin’s verbal promise may affect the endorsers, the notes are likewise without consideration as to them. As against even a sealed note a failure of consideration may be pleaded. Every contract must have for its consideration either some present benefit flowing to the maker or injury resulting to the opposite party, or else a promise of .something to be done in the future. This promise, which may be a good consideration, 'can be either express, or implied from the circumstances of the ease. Whenever the consideration moving to the maker of a contract is a promise, on behalf of the opposite party to the contract, of something to be fulfilled in the future,- such opposite party to the contract must furnish the consideration contemplated, else a plea of failure of consideration, total or partial, as the case may be, will be available to the maker of the contract in defense thereof. In the present instance the consideration of the notes sued on is a promise on the
If it had been contended that the consideration of these notes was supplied by Mrs. Craigmiles agreeing to obtain the money from Mrs. Featherston, then, under the rule just stated, this would have supplied the consideration. In other words, if Nevin had agreed to accept from Mrs. Craigmiles, in performance of her implied, promise to furnish the money herself, an agreement on her part to get the money for him from Mrs. Featherston, Nevin could not plead a failure of consideration; but such was not the contention of the plaintiff. Eeynolds does not even contend that Nevin aceépted a substitute of his (Eeynolds5) undertaking to get the money from Mrs. Featherston in lieu of the consideration which was to be supplied by Mrs. Craigmiles, or, to state it more simply, he does not contend that Nevin agreed to pay these notes in consideration of Be3molds5 services in obtaining the money from Mrs. Featherston. Throughout all his evidence Eeynolds says nothing to negative the position assumed by Nevin, that the consideration of these notes was Mrs. Craigmiles5 undertaking to let him have this money during a certain named period; nor does he suggest any agreed alteration of the specific consideration contemplated. It is undisputed that the particular consideration contemplated has failed; and irrespective of the question as to what might be the con
Judgment affirmed