Abbeville Trading Co v. Butler

• Decision Date: 25 November 1907
• Docket Number: (No. 636.)
• Citation: 59 S.E. 450,3 Ga.App. 138
• Court: Georgia Court of Appeals
• Parties: ABBEVILLE TRADING CO. et al. v. BUTLER, STEVENS & CO.

59 S.E. 450

3 Ga.App. 138

ABBEVILLE TRADING CO. et al.

v.BUTLER, STEVENS & CO.

(No. 636.)

Court of Appeals of Georgia.

Nov. 25, 1907.

1. Bills and Notes — Actions — Drunkenness as Defense.

For one party to be affected by another's drunkenness, he must either have contributed to it or have had knowledge of it. That one indorsed an obligation while in a drunken condition will not affect the rights of a payee who had no knowledge of such drunkenness and no hand in causing it. The payee must have been cognizant of the fact. Civ. Code 1895, § 3654.

(a) There was no evidence that the payee acted through an agent in obtaining the note.

(b) In the absence of evidence that the plaintiff (the holder of a promissory note indorsed by one of the defendants) either caused or knew of the drunken condition of defendant at the time he indorsed the note in question, testimony that such indorser was, in fact, intoxicated when he signed his name as indorser, presented no defense to an action brought against him to recover on the note.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 945.]

2. Pleading —Petition —Failure to Deny Averments.

Under the terms of Civ. Code 1895, § 4961, an averment which is distinctly and plainly made in a distinct paragraph of the plaintiff's petition shall be taken as prima facie true, unless it is denied by the defendant's answer, or it is stated therein that because of the want of sufficient information he can neither admit nor deny such averment.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 270.]

3. New Trial—Refusal.

Inasmuch as no other verdict than that directed could properly have been rendered by the jury, there was no error in overruling the motion for new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, § 130.]

(Syllabus by the Court)

Error from City Court of Abbeville; D. B. Nicholson, Judge.

Action by Butler, Stevens & Co. against the Abbeville Trading Company and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

M. B. Cannon and E. H. Williams, for plaintiffs in error.

McDonald & Quincey and Hal Lawson, for defendants in error.

RUSSELL, J. Butler, Stevens & Co. sued the Abbeville Trading Company, as principal, and W. B. Fussell and R. S. Bell, as sureties, on two promissory notes, one dated April 4, 1905, for $1,046.89, with interest and attorney's fees, and the other dated May 15, 1905, for $1,040.89, with interest and attorney's fees. The Abbeville Trading Company admitted the allegations of the plaintiffs' petition as to jurisdiction and as to the death of Lasseter, one of the indorsers, and that written notice as to the claim of attorney's fees, as provided by law, had been given. It denied indebtedness, and that Fussell and Bell indorsed the notes, and set up certain payments which the answer averred should be allowed the defendants as credits. The defendant Fussell, for answer, alleged that he was so intoxicated at the time he signed the note that he was completely and wholly deprived of reason, and that he had no knowledge of having signed the note until notified by the service of the suit. He further alleged that the plaintiffs were instrumental in procuring said intoxication immediately before and at the time of the signature, through their agent one S. P. Lasseter. At the conclusion of the evidence the judge directed a verdict for the plaintiffs against the Abbeville Trading Company as principal, and against R. S. Bell and W. B. Fussell as sureties, for $1,-207.58, principal, with interest and attorney's fees. The defendants made a motion for new trial, which was overruled; and exception is taken to the judgment refusing a new trial.

On the trial the plaintiffs introduced the two promissory notes above referred to, one due November 1, and the other November 15, 1905, and admitted that there should be a credit amounting to $905.78, dated February 24, 1906, placed on the note due November 1, 1905. The testimony for the defendants was to the effect that the indorser, Fussell, was drunk at the time he signed his name. As to the degree of his drunkenness, the opinions of different witnesses varied. According to Fussell's own testimony, he had been drinking very hard and continuously for 15 or 20 years, but could write his name as well as any man when full of whisky. The evidence further disclosed that S. P. Lasseter, deceased, was president of the Abbeville Trading Company, and that Fussell, Bell, and one Wootten were its stockholders; that Fussell was manager of the guano and wag-on department; and that the notes were attached to a draft deposited in the Citizens' Bank of Abbeville, and the money proceeds were procured by the Abbeville Trading Company.

1. The main question presented by the record is, whether the indorser was relieved from liability if drunk at the time he entered into the contract If his drunkenness was caused by any act of the holder of the note, it is certainly true that Fussell's contract of indorsement would be voidable at his option. It would not be absolutely void, because one who makes a contract when intoxicated may ratify it when perfectly sober; and, if he has obtained anything of value by reason of the contract, he must rescind and offer to restore that which he has received. It is not insisted in this case by the defendants that the plaintiffs themselves caused the intoxication of Mr. Fussell, nor was there any evidence that the plaintiffs knew of his drunkenness or that he was a drunkard. Section 3654 of the Civil Code of 1895 is in these words: "A drunkard, when actually intoxicated to such an extent as to deprive him of reason, can make no valid contract with any one cognizant of the fact of his condition. If the party contracting was at all instrumental in producing the state of intoxication, the contract is invalid, however partial the intoxication may be." There was no evidence whatever that Butler, Stevens & Co., or any member of their firm, were present at the time of the signing of the note, or that they were cognizant of the fact of Mr. Fussell's intoxication; but cou...