Archibald Hardware Co v. Gifford
| Decision Date | 19 February 1932 |
| Docket Number | No. 21639.,21639. |
| Citation | 44 Ga.App. 837,163 S.E. 254 |
| Court | Georgia Court of Appeals |
| Parties | ARCHIBALD HARDWARE CO. v. GIFFORD. |
Syllabus by Editorial Staff.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Suit by the Archibald Hardware Company against G. W. Gifford. Judgment for defend ant, plaintiff's motion for new trial was overruled, and plaintiff brings error.
Affirmed.
Winfield P. Jones, of Atlanta, for plaintiff in error.
McElreath, & Scott, of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. Where a note is payable in installments, a purchaser who acquires the note after a default as to one of such installments, which is shown by the instrument itself, is not a holder in due course, but takes the instrument with notice of its dishonor, and his right as a holder is subject to the equities between the original parties. Beasley Hardware Co. v. Stevens, 42 Ga. App. 114, 155 S. E. 67.
2. In a suit by an indorsee upon a promissory note payable in installments, where there was an issue as to whether the plaintiff acquired the note before or after a default which occurred on February 12, 1925, the testimony of a witness that he had represented the plaintiff company in acquiring the note, and knew that it was purchased some time between February 5 and February 8 of that year, did not demand a finding in the plaintiff's-favor upon such issue, where the witness further testified that he purchased the note after the occurrence of other important transactions, which he fixed at a much later date. In view of this and other material inconsistencies in the testimony of this witness, his credibility was a matter to be determined by the jury; and under his evidence alone the jury could have found that the plaintiff was not a holder in due course, notwithstanding the defendant had the onus of establishing this fact. Continental Trust Co. v. Tennille Banking Co., 39 Ga. App. 163 (2), 146 S. E. 566, and cases cited.
3. In addition to the above, there was evidence to authorize the inference that the note was acquired by the plaintiff corporation through its president, who at the same time was an officer of the payee corporation and had knowledge of the equities existing between the original parties; and in these circumstances such knowledge will be imputed to the plaintiff holder. Town of Douglasville v. Mobley, 169 Ga. 53 (1 b), 149 S. E. 575; Bank of Dania v. Farmers & Traders Bank, 169 Ga. 846 (2), 151 S. E. 803; Strickland Co. v. Union Banking Co., 42 Ga. App. 645 (3), 157 S. E. 115.
4. The defendant pleaded that the note sued on was given as part purchase money for a tract of land in a subdivision, and that the payee had violated sundry cove-nants as to improvements, without which the property was worthless. This amounted to a plea of total failure of consideration as for a breach of mutual and dependent covenants, and the evidence was sufficient to sustain the plea. Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280 (1), 95 S. E. 1028; Schmidt v. Mitchell, 117 Ga. 6 (4), 43 S. E. 371. See, also, Civ. Code 1910, § 4350.
5. The suit was for the entire balance of purchase money, and another defense pleaded was that the plaintiff was unable to make an unincumbered title, according to the agreement of the payee. It appeared from the evidence that the property in question was situated in another state, and that the plaintiff and the payee were each nonresidents; and also that the defendant had never entered possession, and that possession had been resumed by the payee. It appeared from the testimony of the plaintiff...
To continue reading
Request your trial