141 Ga. 799 | Ga. | 1914
A suit was brought in the superior court on a promissory note for $700 principal, and interest, the note containing a stipulation for the payment of reasonable attorney’s fees. At the first term of court, the attorney for the defendant lodged''in the office of the clerk of the superior court an answer which denied each of the two paragraphs contained in the petition, but this answer was not verified, or marked by the clerk “filed in office.” At the trial term, on motion of the plaintiff’s attorney, the presiding judge, without a jury, rendered a judgment for the principal and interest due on the note, without reference to attorney’s fees. At the same term the defendant moved the court to set aside the judgment, and to be allowed to verify the original answer and to file an amended answer also verified. The- written motion for that purpose recited, that the cause came on to be heard at the trial term; that the defendant asked leave to file under oath an amended answer; that this was denied; and that judgment was rendered as above stated. The court granted the motion to set aside the judgment, reinstated the case for trial, and allowed the defendant to file his amended answer and to verify it. The plaintiff excepted pendente lite. There-was no error in this rulinsr. ' • '
The note was negotiable by delivery, and was also indorsed by Scruggs. There was no controversy that the plaintiff was a bona fide purchaser for value and without notice of any defense. Under the decisions in this State, the mere recital of the consideration does not ordinarily prevent a note from being negotiable, or prevent a bona fide taker for value and before due and without notice from being protected against defenses, with certain exceptions. Park v. Zellars, 139 Ga. 585 (4), 586 (77 S. E. 922). If this note is an exception to the general rule of the right of a bona fide holder for value, receiving a note before it is due and without notice of any defense, it must be on account of the act of 1897 (codified in the' Civil Code, §§ 4293, 4294, and the Penal Code, § 635), which deals with notes or contracts given for patent, copy, or proprietary rights. Omitting provisions not material in the present case, section 4293 provides that all promissory notes taken by any person, agent, company, or corporation, for the purchase-price of any patent, copy, or proprietary right, or territory for the sale of any such right, and sold by such person, agent, company, or corporation through or by any peddler, agent, or traveling salesman, shall have expressed on the face of such note the consideration therefor, stating the thing or article for which it'was given. Section 4294 provides that any person who purchases any note given for any of the
It will be seen that these sections deal with promissory notes given for the purchase-price of patent articles or for the sale of territory therefor, provided that the consideration shall be expressed on the face of the note, and that a taker of such note, whether before due or not, shall take it "with all the equities existing between the original parties,” and with the right on the part of the maker to make any defense to the payment of the note as against the purchaser thereof "that could have been made against the original payee.” The note in suit purported on its face to be given for a certain patent article. The defendant testified that it was in part consideration of the purchase-price of the contract made with a certain company. Evidently the persons intended by the statute were the parties to the contract of sale, or the original payee of a note given for the purchase-price. This note did not purport on' its face to be given to Scruggs for the purchase-price of a patent article, nor did the evidence of the defendant tend to show that it was so given. Under the confused evidence of the defendant, either it was given for. the purchase-price of an interest sold Batten, or more probably the latter’s interest was sold by the company and Batten was to receive a part of the purchase-price due for this sale. Therefore, either the company or Batten must have been the original party or the original payee contemplated by the statute. While the note is made payable to bearer, thus rendering it negotiable by delivery, the statute never contemplated that the maker, in a suit by an innocent purchaser before due and without notice, could set up equities or defenses against every person who might at any time hold the note as a bearer. This note never having been' given for the purchase-money of any patent article or patent right, or an
The instructions excepted to, which were not in accord with the ruling here made, were erroneous.
Judgment reversed.