Hirsch v. Oliver
| Decision Date | 17 April 1893 |
| Citation | 18 S.E. 354,91 Ga. 554 |
| Parties | HIRSCH v. OLIVER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The striking of a plea that the notes declared upon were without consideration is not cause for a new trial, when it affirmatively and clearly appears from the facts disclosed at the trial that there was a full and sufficient consideration for the notes.
2. To an action against the maker on his negotiable promissory notes, a plea that he executed them with the understanding that he was not to be bound, and for a purpose wholly at variance with their plain tenor and import, is no defense there being no denial that the notes were made and delivered and no suggestion in the plea that the understanding and purpose alleged were evidenced by any writing, or that they were omitted from the notes by fraud, accident, or mistake.
3. The notes being signed by the defendant in his own name with the addition of "& Co.," and it not appearing in the transcript of the record brought up what the declaration alleged, if anything, as to a partnership or firm, no error is apparent in the judgment sustaining the demurrer to a plea on that subject.
4. In an action upon promissory notes signed by the defendant with the addition "& Co.," where the defendant, instead of pleading the nonjoinder of a copartner, files a sworn plea of no partnership, a recovery may be had against him on a proper declaration if he executed the notes, whether in fact he had a copartner or not. In this case it does not appear that any person was sued except the defendant.
5. An agent to rent premises for the owner may, after the notes for the rent have been taken and a portion of the term expired become an agent for the tenant to sublet the premises to another tenant for the balance of the term. In such case the control of the premises by the agent while representing the tenant will have no effect on the rent notes.
6. Agency cannot be proved by the declaration of another agent of the same principal made to the witness, unless it appears that the latter agent was authorized by the principal to make the declaration, or that it was made as a part of the res gestae in the performance of some duty appertaining to his agency.
7. There was no error in denying a new trial.
Error from superior court, Sumter county; W. H. Fish, Judge.
Action by J. F. Oliver against A. Hirsch to recover on promissory notes. There was judgment for plaintiff, and a new trial denied. Defendant brings error. Affirmed.
Hinton & Cutts, for plaintiff in error.
E. A. Hawkins, for defendant in error.
1. The merits of this controversy were fully exposed at the trial. The parties introduced evidence pro and con, and all the facts touching consideration or want of consideration for the notes declared upon were brought out. From these it clearly appears that there was a full and sufficient consideration for the notes. This being so, the striking of the plea that the...
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