78 Ga. 201 | Ga. | 1887
This case was here on a former writ of error in 69 Ga. 297. The note declared upon and the one pleaded as a set-off were precisely alike, except as to the makers and the payees, respectively. The former note was made by Shipp & McLester, payable to Davis, or bearer; the latter by Davis to Shipp & McLester, or bearer. They bore the same date, which was in August, 1874, and each of them was due on the first of November thereafter. The record shows that Davis was a merchant, and that this firm was
Of the note pleaded as a set-off, there was no denial in the pleadings, on oath or otherwise. For some reason, the counsel wanted to prove, and did prove, its execution and delivery. He may have thought the sections of the code relating to non est factum. (§§3454, 2851, 3472) could not be applied to an instrument set up defensively, there being, under our system, no replication. At all events, he chose to assume the burden of showing execution and delivery, together with some later incidents of the note’s history. The history of its origin was thus broached by the defendant’s counsel himself, and that history laid open to full investigation; and the witness, while on the stand, could disclose the entire res gestee of the execution and de livery. The circumstances were such that the existence of this note could not be adequately accounted for without explaining the existence of the other, nor the existence of the other without referring to the book account. The three were tied together in one knot of history, and what the witness did was to expound the knot, and show how the combination came to be made, and what were the several elements of the several things combined. In so doing, he explained and accounted for the acts of signing and delivering, and showed the consideration involved in the transaction, and, incidentally, the consideration of both notes. Allthishe did just to the extent that a disinterested witness might have done when examined in rebuttal to a cross-examination. There was no recurrence to the subject-matter of the examination in chief. That related to the loss of the other note, and that alone, and was not for information of the jury, but of the court, being designed to lay the foundation for secondary evidence touching the contents of the lost instrument. Indeed, it might be urged
The result is, that granting the incompetency of the plaintiff to testify as a witness touching these drafts (and considering the way the examination commenced, it is
The giving of the note was no extinguishment of the right of action on the account; the existence of a right of action on the account was-no obstacle to an action on the note. As between the parties themselves, payment of the note would extinguish the account pro tanto, and payment of the account would extinguish both; that is, the whole debt. As long as anything was left due on the account, the note would be good for that much. Stripped of the cobwebs woven about the transaction, the case is but the very common one of a creditor having his debtor’s note as a security for the payment, in part, of his debtor’s account. And with this view, the note pleaded as a set-off, is, in the light of all the competent testimony in the record, both the interested and the disinterested, quite consistent. This latter note represents no debt, and never did. Yet it was good, and remains good, for the purpose for which, in legal effect, it was given, to-wit, to prevent the plaintiff from collecting any part of his debt more than once. That was and is its office, and whenever and wherever it is needed
Judgment affirmed.