136 Ga. 877 | Ga. | 1911
W. E. Powell Company brought suit upon a promissory note against S. E. Seagraves and Mrs. J. P. Seagraves. It was recited in the note that the same was given for the purchase-money of a certain described horse.. The defendants filed their joint plea, setting up that the horse was never delivered to the defendants or either of them, although the note was executed by them upon the express understanding that the horse would be delivered to S. E. Seagraves the next day: hence the consideration for the note has totally failed ; Mrs. J. P. Seagraves did not cxe
The other ground of the motion was based upon the absence of two witnesses. Their absence was not hurtful to the plaintiff in error; the facts which the plaintiff in error, according to the showing made on the motion for a continuance, expected to establish by the absent witnesses, were immaterial and irrelevant to the real issues in the case. The defendant’s contention on the trial was, the note sued on was given for the purchase of a horse, and that the plaintiffs, instead of delivering the horse, delivered to him a note which the defendant Seagraves had formerly executed and delivered to a third party. He pleaded that when this note was handed to him he did not know what the paper so handed to him contained, and that immediately upon reading it, and discovering that it was his promissory note formerly executed to the third party just referred to, he tendered it back. But upon the trial of the case he testified that while the note sued on was for the purchase-money of a horse, he accepted and retained the note so handed to him in lieu of the horse, and directed that the horse which he had purchased be turned over to the third party, the payee in the note which was handed to him and which he accepted. The court on the trial of the case distinctly and clearly submitted to the jury the
Judgment afirmad.