Cole v. Bank of Bowersville

• Decision Date: 10 December 1923
• Docket Number: 14632.
• Citation: 120 S.E. 790,31 Ga.App. 435
• Parties: COLE v. BANK OF BOWERSVILLE.
• Court: Georgia Court of Appeals

120 S.E. 790

31 Ga.App. 435

COLE v. BANK OF BOWERSVILLE.

No. 14632.

Court of Appeals of Georgia, Second Division

December 10, 1923

Syllabus by the Court.

A note in which it is stipulated that a certain sum will be paid means that this sum will be paid in money, and the maker or the indorser will not be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money.

When a negotiable paper received under dishonor is sued on by a holder or indorsee, no set-off against the original payee is allowed, except such as is in some way connected with the debt sued on or the transaction out of which it sprung.

Applying the foregoing principles to the facts of this case, the trial court did not err in directing a verdict for the plaintiff nor in any prior ruling.

Error from Superior Court, Hart County; W. L. Hodges, Judge.

Action by the Bank of Bowersville against F. E. Cole. Judgment for plaintiff, and defendant brings error. Affirmed.

J. H. & Emett Skelton, of Hartwell, and Geo. C. Grogan, of Elberton for plaintiff in error.

Tutt & Brown, of Elberton, and T. S. Mason, of Hartwell, for defendant in error.

BELL J.

To a suit upon a negotiable note, brought by the Bank of Bowersville, an indorsee, the defendant maker, F. E. Cole pleaded, in his answer as amended, that at the time of the execution of the note it was agreed between himself and the payee that it would not be paid in money, but at its maturity would be offset against other and larger notes held by him against the payee. It was further pleaded that such larger notes had not been paid, that the payee therein was insolvent, and that the plaintiff indorsee had notice of all of these facts when taking the note sued on. At the close of the evidence the court struck the amendment to the answer, ruled out certain evidence introduced by the defendant, and directed a verdict for the plaintiff. The defendant took exceptions pendente lite to the striking of the amendment to his answer, and in the motion for a new trial complained of the other rulings. His motion overruled, he has brought the case here.

1. "A note in which it is stipulated that a certain sum will be paid means that this sum will be paid in money, and neither the maker nor the indorser will be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money." Civil Code 1910, §§ 4266, 5788; Stapleton v. Monroe, 111 Ga. 848, 36 S.E. 428; Brewer v. Grogan, 116 Ga. 60, 42 S.E. 525; American Harrow Co. v. Dolvin, 119 Ga. 186, 45 S.E. 983; Berendt v. Ripps, 120 Ga. 228, 47 S.E. 595; Kerr v. Holder, 13 Ga.App. 9 (4), 78 S.E. 682.

2. The contemporaneous oral agreement pleaded was inadmissible to vary the...