Dye v. Richards

• Decision Date: 11 May 1954
• Docket Number: No. 18504,18504
• Citation: 210 Ga. 601,81 S.E.2d 820
• Parties: DYE v. RICHARDS.
• Court: Georgia Supreme Court

Page 820

81 S.E.2d 820

210 Ga. 601

DYE v. RICHARDS.

No. 18504.

Supreme Court of Georgia.

May 11, 1954.

Syllabus by the Court.

1. Where a wife signs a note as an apparent principal, the burden is on her to prove her plea that she signed as a surety only, and that the payee of the note, with knowledge of the facts which constitute her a surety, contracted with her as a surety. Such a plea of suretyship is not sustained where it appears that the lender delivered the consideration for the note, both legally and morally, to the husband and wife jointly without division. In such a case the writing is to be regarded as the true contract, and it is not void or voidable because of some secret understanding between the wife and the husband, unknown to the lender.

2. Where a wife's plea of suretyship is not sustained by any competent evidence, and the court directs a verdict against her, the case will not be reversed because the court may have erred in a pendente lite ruling which does not affect the only substantial issue in the case.

Roy Richards, as transferee, filed a suit on a note against Mrs. Beatrice F. Dye in the City Court of Carrollton. From the record it appears that the note was signed by Mrs. Dye, James E. Dye, her husband, and the plaintiff, in the order named, and was payable to the West Georgia National Bank. On the trial in the city court, and at the conclusion of the evidence, the judge directed a verdict for the plaintiff. On certiorari, the judge of the superior court reversed this judgment; the Court of Appeals, on writ of error, reversed the judgment of the superior court; and this court granted certiorari.

The two substantial issues considered and passed upon by the Court of Appeals were: first, whether the trial judge erred in directing a verdict for the plaintiff on the evidence introduced; and second, whether the trial judge erred in allowing an amendment of the plaintiff, which the defendant contended was erroneously allowed under a previous ruling of the judge of the superior court, unexcepted to, as the law of the case. See Richards v. Dye, 89 Ga.App. 376, 79 S.E.2d 548, for a full statement of the case and the rulings made.

Shirley C. Boykin, Boykin & Boykin, Carrollton, for plaintiff in error.

O. W. Roberts, Jr., Carrollton, for defendant in error.

HEAD, Justice.

1. When the defendant by her answer admitted the execution of the note in the manner alleged, at a place where a principal would ordinarily sign, the law placed upon her the burden of establishing her plea of suretyship. This rule was succinctly stated by Judge MacIntyre for the Court of Appeals in Lovelady v. Moss, 50 Ga.App. 652, 653, 179 S.E. 168, 169, where it was said: 'Where the wife signs the note as an apparent principal, the burden is on her to prove that she signed as surety only, and that the payee of the note, with knowledge of the facts which would constitute her a surety, contracted with her as a surety.' See also Sutton v. Aiken, 62 Ga. 733, 742; Perkins v. Rowland, 69 Ga. 661, 664; Howard v. Simpkins, 70 Ga. 322(4-b); Temples v. Equitable Mortgage Co., 100 Ga. 503, 507, 510, 28 S.E. 232; Hall v. Rogers, 114 Ga. 357, 40 S.E. 250; Bank of Lumpkin County v. Justus, 150 Ga. 286, 287(2), 103 S.E. 794; Bennett v. Danforth, 36 Ga.App. 466, 137 S.E. 285; Boles v. Hartsfield Co., 50 Ga.App. 442, 443, 178 S.E. 416; Veal v. Veal, 50 Ga.App. 445, 446, 178 S.E. 456; Allmond v. Mount Vernon Bank, 53 Ga.App. 565, 567(3), 186 S.E. 581; Herron v. Interstate Life & Accident Co., 55 Ga.App. 534, 538, 190 S.E. 631.

In the present case, as set forth in both the majority and minority opinions by the Court of Appeals, the only evidence offered by the defendant tending to show that the West Georgia National Bank had any knowledge that the defendant had signed the note only as a surety was her own testimony concerning an alleged conversation had by her with Mr. Cobb, cashier of the bank, who had since died. According to this testimony by the defendant, after her husband had left town, and the note was past due, she went to the bank for the first time and talked with Mr. Cobb about the note, and Mr. Cobb told her that he had let her husband borrow the money, that the note was due, that her husband had borrowed the money from the bank to pay for a filling station he was running, and that he had let her husband have the money because Roy Richards' name was on the note. This evidence was objected to by counsel for the plaintiff, at the time it was offered, on number of grounds, including the ground that it was a conversation with a person since deceased and out of the hearing of the plaintiff.

On cross-examination the defendant was asked the following question: 'Did you ever call Mr. Cobb or anyone at the West Georgia National Bank and tell them that you objected to being on a note with your husband?' to which she replied: 'No, sir, I never did discuss anything with them.' It appears from her testimony, without dispute, that the bank issued a cashier's check for the note, payable to the three persons whose names appeared thereon as principals, and that she endorsed the check and gave it to her husband.

If the alleged conversation of the defendant with the deceased cashier of the bank could properly be held sufficient to make an issue as to whether or not the cashier of the bank had knowledge of the facts that would constitute her a surety, and that he dealt with her as such, the conversation was not admissible under any applicable rule of evidence in this State.

Code, § 38-1603, subd. 1 provides in part that, where any suit shall be instituted or defended by an endorsee, assignee, or transferee, or the...