Griffin v. Blackshear Bank

• Decision Date: 06 March 1942
• Docket Number: 29363.
• Parties: GRIFFIN v. BLACKSHEAR BANK.
• Court: Georgia Court of Appeals

19 S.E.2d 325

66 Ga.App. 821

GRIFFIN v. BLACKSHEAR BANK.

No. 29363.

Court of Appeals of Georgia, Division No. 2.

March 6, 1942

Rehearing Denied March 27, 1942.

Syllabus by the Court.

The Blackshear Bank brought suit in the superior court of Brantley County against Carlie Roberson and R. A. Griffin and alleged that the defendants were residents of the county that "said defendant executed to Sweat & Gaskins one certain promissory note *** for $320 dated Sept. 8, 1937, due August 15, 1938", which note was "held and owned" by the plaintiff; that the plaintiff was a holder in due course; that a copy of the note with all indorsements and credits thereon was attached and made a part of the petition; that the defendants were indebted to the plaintiff on such note in the principal sum of $279.18. On the back of the copy of the note attached to the petition there appeared a credit to wit: "8/18/38. Paid $65." There appeared also on the copy of the note attached to the petition the following indorsement: "Sweat &amp Gaskins, by Mrs. S. P. Sweat, by L. E. Sweat, her attorney in fact." Process was issued requiring both defendants to appear at the next term of court. The sheriff served Griffin in person, but as to Roberson made the following return: "After diligent search I am unable to find Carlie Roberson,

within defendant, within limits of Brantley County, Georgia or his residence therein."

Griffin filed his answer in which he admitted his residence and alleged that Roberson was a bona fide resident of Wayne County, Georgia and the return of the sheriff shows "non est inventus." In his answer Griffin admitted the execution of the note but alleged that the plaintiff was not a holder in due course, but that it acquired the note "subject to all equities, pleas, and infirmities between original parties." The answer admitted the copy of the note attached to the petition, and also admitted that the note was unpaid. The allegation of the petition as to the indebtedness of the defendants to the plaintiff on the note was denied. For further plea Griffin alleged that Roberson bought from Sweat & Gaskins, on September 8, 1937, "one dapple-gray mare mule, 6 years old, and that Sweat & Gaskins took retain-title note $320 and same is of record *** office clerk superior court of Brantley Co. Ga.;" that at the same time on the same date the note sued on was signed by Carlie Roberson and indorsed by E. A. Griffin, "the mule was actually purchased by Carlie Roberson;" that "on Aug. 18, 1939, due date $65 was paid on note sued on to Sweat & Gaskins and a receipt signed by Lonnie Sweat, attorney in fact;" that "Sweat & Gaskins were the holders of note sued on on due date;" that on February 23, 1939, after maturity, the plaintiff notified Roberson "that the note was in favor of Sweat & Gaskins with copy to R. A. Griffin;" that "Sweat & Gaskins without knowledge and consent of R. A. Griffin took back the mule sold and gave Carlie Roberson one bay mare mule, and that Sweat & Gaskins took the original mule and sold it to Buie Thomas of Brantley County, Georgia;" that the risk and hazard of Griffin was increased by "this swap of mules and he never agreed to same at any time;" that "this surety and indorser was relieved because payee of note increased the risk or hazard of surety and changed the situation without his consent;" that "this increase of his risk as surety consequently released [him] from all liability to Sweat & Gaskins, all done without his consent."

The case proceeded to trial before a jury. The plaintiff introduced the note sued on, showing the credit and indorsement set forth above, which note recited that "August 15, 1938, after date, for value received I, we or either of us, promise to pay to the order of Sweat & Gaskins" $320. The plaintiff then rested. Griffin introduced evidence that he signed the note, and that Roberson signed it on September 8, 1937, when Roberson was a tenant on the farm of this defendant, and the consideration of the note was for one gray mule; that all he knew about the transaction was that Sweat (evidently L. E. Sweat) and three other persons, including Roberson, came to the house of this defendant one night about 9 o'clock and requested him to indorse the note which Sweat stated was for one gray mare mule, that this defendant indorsed the note, that he knew the note was due on August 15, 1938, and on that day Roberson paid "Mr. Sweat $65 and Mr. Sweat gave him a receipt for it in my presence;" that the receipt was given in the office of Sweat; that this receipt was signed "Sweat & Gaskins by L. E. Sweat;" that Sweat did not tell him anything about the Blackshear Bank having bought the note; that he did not say anything about his not owning it but took the money for it; that he did not make the receipt out to the bank and nothing was said about the bank owning the note; that previous to that time he had no notice from the bank and didn't know anything about the bank "being supposed to own that paper." L. E. Sweat testified for the defendant that he gave the receipt to Griffin; that at that time the bank owned the note as he had put it up as collateral with the bank for the loan, that the bank had it about sixty days after the note was signed, that he never notified Griffin that he had sold the note to the...