58 Ga. App. 39 | Ga. Ct. App. | 1938
This was a suit on a note. The defendant admitted the execution of the note, but denied liability on the ground that the note was without consideration., He alleged in his answer, that before the date this note was made he was indebted to the plaintiff on another note for approximately $1400 or $1500; that for the purpose of paying off that indebtedness and others he applied to the Home Owners Loan Corporation for a loan, which loan was granted after creditors, among which the present plaintiff was one, had signed agreements to accept a less amount than their original debts, and to accept bonds of the Home Owners Loan Corporation; that the plaintiff signed an agreement on May 39, 1934, to accept such bonds in the sum of $1193.13, and did accept said bonds, and released the defendant from all other or further claim on account of the said indebtedness; that nevertheless the plaintiff importuned the defendant to make the note sued on
The court properly overruled the demurrer. It will be observed that the defendant set up in his plea that the plaintiff signed an agreement to accept bonds in the sum of $1192.12, and-that he did accept the bonds and released the defendant from all other and further claim on account of said indebtedness; that the note was without consideration; that when the plaintiff accepted the bonds in full settlement of the former note there was an accord and satisfaction of that obligation; and that the note sued on was a nudum pactum. These allegations set up a defense good against general demurrer. But the plaintiff contends that the want or lack of consideration in a promissory note executed under seal can not be pleaded as a defense to a suit thereon by the original payee. His counsel cites certain cases, among them Smith v. Smith, 36 Ga. 184, 191 (91 Am. D. 761), Sivell v. Hogan, 119 Ga. 167 (46 S. E. 67), Van Dyke v. Van Dyke, 123 Ga. 686, 690 (51 S. E. 582, 3 Ann. Cas. 978), and Slaton v. Fowler, 124 Ga. 955 (53 S. E. 567), in support of this contention; but none of these cases decides this particular question. For instance, it was said in the Sivell case: “We are not, however, to be understood as definitely committing ourselves at this time to the proposition that even
As above stated, this case was submitted to and passed on by the court upon an agreed statement of facts which was not embodied in the bill of exceptions or attached as an exhibit thereto and properly identified by the judge, but it was signed only by counsel for the parties. This agreed statement can not be considered by this court. “In the transcript sent up by the clerk as record, a paper which purports to be a copy of an agreed statement of facts can not be considered as record, the same not having been approved by the trial judge and made a part of the record, where it only appears that such agreed statement was signed by counsel and filed in the office of the clerk.” Federal Investment Co. v. Ewing, 165 Ga. 435 (141 S. E. 65), citing Robinson v. Woodward, 134 Ga. 777 (68 S. E. 553), and Scott v. Wage Earners Loan &c. Co., 147 Ga. 576 (94 S. E. 1021). See also Fitzgerald v. Brown, 22 Ga. App. 57 (95 S. E. 377); Wilcher v. Williams, 41 Ga. App. 668 (154 S. E. 292). “Where a case is submitted to the trial judge to pass upon all questions of law and fact without the intervention of a jury, and he renders judgment in favor of the plaintiff [or the defendant], this court will pre
Judgment affirmed.