110 Ga. 494 | Ga. | 1900
The Union Savings Bank and Trust Company sued Ellis and Toole as makers, and Duncan as indorser, upon a promissory note. Their defense was that the note was “entirely without consideration ”; that while the note “ was signed by the two defendants who appear thereon as makers ” and “ was indorsed by the defendant who appears thereon as indorser,” neither the makers nor the indorser ever “received one dollar on account of said note from said petitioner or any one else;” that it was never given to the plaintiff or any one else as an evidence of debt; that it was simply “ left” with one Nelligan, who “was the• accountant and cashier” of the plaintiff, as security for the making of “certain improvements upon certain property, which improvements were made; that the conditions upon which it had been deposited with him having been fulfilled,” they inquired, at various times, of Nelligan what had become of the note, and were always informed by him that he could not lay his hands upon it; that the plaintiff was not a bona fide holder of the note, but “got possession of [it] through the said Nelligan, its officer, with all of the knowledge that said officer possessed.” Upon the trial of the case the jury returned a verdict in favor of the defendants. The plaintiff made a motion for a new trial, which was overruled, and- it excepted.
One ground.of the motion for a new trial was that the court erred in charging the jury as follows: “ If you find, from the evidence in this case, that the defendants did execute this note, did contract with Nelligan individually, if their contract was with him as an individual, that this note was made and deposited with him simply as security for the performance of certain conditions, and if you believe further that those conditions were met, if it was delivered to be security for making of certain improvements upon a building or buildings, and you believe those improvements were made, and if you believe further that the contract was that that note should be surrendered upon the mak
While there may have been inaccuracies of expression in some of the other extracts from the charge which are excepted to, we do not think that, when the charge is considered as a whole, there was any material error in the portions of it upon which error is assigned, except as above indicated.
Judgment reversed.