Hardee v. Griner

• Decision Date: 03 March 1888
• Citation: 80 Ga. 559,7 S.E. 102
• Parties: Hardee et al. v. Griner et al.
• Court: Georgia Supreme Court

7 S.E. 102

(80 Ga. 559)

Hardee et al.

v.Griner et al.

Supreme Court of Georgia.

March 3, 1888.

1. Appeal—Practice—Assignments of Error.

A plaintiff below, who has excepted to the denial of his motion for a new trial based on proper grounds, may at the hearing in the supreme court assign error on exceptions, taken pendente lite, to the overruling of his demurrer to the defendant's plea, though no mention is made of this interlocutory matter in his final bill of exceptions.

2. Contract—Consideration—Agreement not to Plead Failure of.

The note sued on is not, prima facie, affected by a written promise not to plead failure of consideration, when the note matures in November, no year being specified, and the promise describes a note of the same date and amount, maturing in October of a given year, the promise not being mentioned in the declaration or summons, though a copy of it followed a copy of the note annexed to the summons, and it not appearing that the originals of both instruments were on the same piece of paper, and the promise not reciting any consideration for the making thereof. 8. Trial—Verdict—Sufficiency of Evidence.

Verdict warranted by the evidence.

(Syllabus by the Court.)

Error from superior court, Pierce county; Atkinson, Judge. S. W. Hitch, by Harrison & Peeples, for plaintiffs in error. F. H. Harris, for defendants in error.

Bleckley, C. J. The suit was on a promissory note, and brought originally in a justice's court. The summons alleged indebtedness upon the note, making no mention of any collateral promise connected therewith; but following a copy of the note, annexed to the summons, was the copy of a promise in writing signed by the same parties who made the note. That promise recited the giving of a note corresponding in amount with this one, but describing it as payable on the first day of October, 1884; whereas, the note sued on and set out by copy was not payable then, but was payable the 1st of November, without specifying what November. The promise recited that the note which it described was given for fertilizers, and it stipulated that the makers of the note would not set up, by way of defense, any failure of consideration. It did not set forth any consideration for that undertaking, but the makers bound themselves, or tried to do so, not to set up any plea of failure of consideration in resistance to the note.

. 1. The case went to the superior court by appeal; and there a plea, which the defendants filed, setting up failure of consideration, was demurred to by the plaintiffs, (1) upon the ground of want of sufficient certainty, etc.; (2) that it varies the written contract sued on and sets the same aside; and (3) the want of sufficient certainty. The first want of sufficient certainty went to the allegation of fraud, and the second want of sufficient certainty went to the allegations of the plea generally The demurrer was overruled, and the plaintiffs entered their exceptions pendente lite, duly certified. The parties went to trial upon the plea, and there was a verdict for the defendants. There was much evidence introduced, but, if the plea was not ruled out by any express contract, the finding of the jury is maintainable, and the verdict ought to stand. The plaintiffs made a motion for a new trial on the grounds simply that the verdict was contrary to law, to the charge of the court, to the evidence, to the weight of evidence, and to the principles of equity and justice. The motion was denied, and thereupon the plaintiffs brought by writ of error the judgment denying their motion for a new trial to this court. In their final bill of exceptions, they assigned error only on the refusal to grant a new trial, and did not assign any error upon the ruling made pendente lite touching the plea; but, when the case was called for hearing here, they did assign error upon the exceptions taken pendente lite. It was objected that they could not do so, but we think they could, under the express provisions of Code, § 4250, as construed by decisions of this court. A case directly in point is Railroad Co. v. Nix, 68 Ga. 572; and in Stanford v. Treadwell, 69 Ga. 725, is...