Thomas v. Wolfe

47 Ga. 295 | Ga. | 1872

Montgomery, Judge.

The defendant in error sued the plaintiff in error on a promissory note, drawn in the usual form, except that it stated it was “ to be paid in any solvent notes.” When the case was called, defendant below moved a continuance, on account of the absence of a witness, by whom he expected to prove that the note should have read, “ to be paid in any solvent notes belonging to the estate of A. C. Whitehead.” Defendant had pleaded this mistake in the contract, and also, by amended plea, that he had tendered notes, (without saying whether they were solvent or not,) belonging to that estate, in payment, which plaintiff had refused. The Court overruled the motion to continue. Defendant then offered to prove the same fact by himself. His evidence was rejected. There was no statement made by defendant, or his counsel, that he expected to prove by the absent witness, or that the defendant, himself, could prove a tender of any solvent notes to the plaintiff in payment of the note sued on, whether belonging to the estate named, or of any other solvent notes. The evidence, then, if admitted, would have been wholly immaterial. Counsel insisted, in the argument, that the proposed addition to the note was material, because a payment of notes belonging to the estate, which had been solvent at the date of the note sued on, but were no longer so, would be a compliance with defendant’s ■contract. We do not think so.

Judgment affirmed.