Crooker v. Hamilton
| Decision Date | 09 December 1907 |
| Docket Number | 473. |
| Citation | 59 S.E. 722,3 Ga.App. 190 |
| Parties | CROOKER v. HAMILTON et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The evidence authorized the verdict as to all of the defendants but a verdict in favor of one of them was not demanded by the evidence. Error being specially assigned on the fact that the court directed the finding of the jury, the judgment refusing a new trial as to that defendant must be reversed. There was no error in refusing a new trial as to the other defendants.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4562-4572.]
The agreement never to sue another upon his written obligation must be in writing in order to be a covenant equivalent to a release, within the meaning of Civ. Code 1895, § 3714, unless made subsequently to the original undertaking and upon a new and independent consideration.
Parol evidence is inadmissible to vary the terms of payment or the date of the maturity of a promissory note, or to ingraft upon the note a provision for an extension of time.
Parol evidence is admissible, not only when a promissory note is obtained by fraud, but when the note is not the entire contract between the parties, and when the contract is partly in parol and partly in writing. Where the sole consideration of a promissory note is an agency to sell a patent right and articles patented thereunder, parol evidence is admissible not only to show the real value or worthlessness of the power of sale evidenced by such contract, but also, when it is pleaded that the note was obtained by fraud, to present to the jury all such facts and circumstances as tend to establish that defense.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2005-2020.]
Error from City Court of Baxley; J. H. Thomas, Judge.
Action by E. R. Crooker against John Hamilton and others. From a judgment for defendants, plaintiff brings error. Reversed in part.
V. E. Padgett, for plaintiff in error.
W. W. Bennett and Parker & Moore, for defendants in error.
Crooker brought suit upon a promissory note against John Hamilton and Willie Hamilton. The note sued upon was given for a patent right, and it so appears on the face of the note. The defendants filed pleas of fraud in the procurement of the note and of failure of consideration; the plea averring that the consideration of the note was a patent right for a certain clothes washer, and that the thing patented, and therefore the patent right, was absolutely worthless. The plea alleged other grounds of failure of consideration. The defendants further alleged in their plea a contemporaneous verbal agreement that the note would never be sued on. The original petition of the plaintiff made no reference to the consideration of the note, but by amendment the plaintiff set up as a consideration the contract by which there was conveyed to the defendants the privilege of selling family rights and minor standard special and patentee's agency of the "Swift 1904 Clothes Washer." The privilege was not confined to any territorial limits less extensive than the face of the earth (unless some like purchaser had previously pre-empted a county, by occupancy), and in addition the purchasers were granted the right of appointing two subagents. The plaintiff also, by amendment, attached as an exhibit to his petition a statement of W. J. Hamilton, admitting that he had received full and complete instructions as to the operation of the washer and that all the other requirements of the contract had been fully complied with. The note, which was the basis of the suit, was dated September 9, 1905, and the contract of sale was of the same date. The statement of Willie Hamilton bore date of October 4, 1905. At the conclusion of the testimony the court directed a verdict for the defendants, and exception is taken to the order of the court refusing a new trial.
1. We think that the judgment of the trial judge, as a matter of law, is partly right and partly wrong. The only material error is presented in the eleventh ground of the motion for new trial, which excepts to the direction of the verdict by the judge. If the plaintiff in error had not assigned error especially upon the fact that the verdict was directed, instead of having been found by the jury, we should affirm the judgment as a whole, under the ruling in Dickenson v. Stults, 120 Ga. 632, 48 S.E. 173, and Shipley v. Eiswald, 54 Ga. 520. The pleas of the defendant John Hamilton were fully supported by evidence which was uncontradicted. No verdict could legally have been found in favor of the plaintiff against him, and hence there was no error in directing the verdict in his favor. While the suit was brought against Moody as an indorser, and his name appears as such upon the copy note attached to the declaration, and while the defendants Hamilton admitted the execution of the note, the defendant Moody did not admit indorsing it. On the contrary he testified emphatically that Crooker, the plaintiff, was present when the note was executed and it was delivered to him, that he was only an agent of Crooker in taking the note for the purpose of turning it over to him, and that he never had any interest whatever in it. He further unequivocally denied that he never indorsed the note, or authorized any one to indorse it for him, or ever agreed to pay it. The admissions of the Hamiltons as to the note could not affect Moody, and in view of the fact that the evidence in support of his plea was uncontradicted, and that the original note, if it shows to the contrary, was not introduced, a verdict in his favor was demanded. The evidence in behalf of Willie Hamilton would have authorized a finding in his favor; but it was contradicted by his admission in writing, subsequently to the note and the contract of purchase, that he had received full consideration. In certain events he might be estopped from setting up failure of consideration against the plaintiff. Greenhood on Pub. Policy, rule 10. His testimony as to the circumstances under which the admission was made raised an issue of fact, and the judge erred in himself deciding this issue, instead of submitting it to the jury. As the case must, for this reason, be returned for another trial as to the defendant Willie Hamilton, and although such errors as are assigned in the remaining grounds are not sufficiently grave to warrant a new trial, we will proceed to deal with the other grounds of the amended motion for new trial.
2. The plaintiff's objection to certain parol evidence as contained in the first and sixth grounds of the amendment to the motion for new trial was well taken though the verdict could be sustained without reference to this testimony. The...
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