Johnson County Sav. Bank.& v. Son

• Decision Date: 29 June 1911
• Docket Number: (No. 3,005.)
• Court: Georgia Court of Appeals
• Parties: JOHNSON COUNTY SAVINGS BANK.； v. W. L. RICHARDSON & SON.

9 Ga.App. 466

71 S.E. 757

JOHNSON COUNTY SAVINGS BANK.；

v.W. L. RICHARDSON & SON.

(No. 3, 005.)

Court of Appeals of Georgia.

June 29, 1911.

(Syllabus by the Court.)

1. Evidence (§§ 182, 318^*)—Principal and Agent (§ 22*) — Lost Letter —Parol Evidence—Agency—Declaration of Purported Agent—Hearsay.

The evidence in behalf of the defendants was insufficient to rebut the presumption that the plaintiff purchased the acceptance for value before maturity. Parol evidence is admissible to prove the contents of a letter which has been lost or destroyed, if the letter has first been shown to have been written by a duly authorized agent of one of the parties to the cause pending. But agency cannot be established by mere declarations of the purported agent; and statements in a letter, in which the writer claimed that he was an attorney representing another, in the absence of proof to that effect, are objectionable as hearsay, and are without any probative value.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 001. 1194; Dec. Dig. §§ 182, 318;* Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]

2. New Trial (§ 68*)—Sufficiency of Evidence.

The verdict rendered, being wholly without evidence to support it, was contrary to law, and the court erred in refusing a new trial.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 135; Dec. Dig. § 68.*]

Error from City Court of Lumpkin; E. T. Hickey, Judge.

Action by the Johnson County Savings Bank against W. L. Richardson & Son. Judgment for defendants, and plaintiff brings error. Reversed.

G. Y. Harrell, for plaintiff in error.

J. B. Hudson, for defendants in error.

RUSSELL, J. The defendants entered into a contract with the United Jewelers' Manufacturing Company for the purchase of an assortment of jewelry. It is unnecessary to consider the terms of the contract or its subsequent modification by the insertion of new terms which were ingrafted upon it; for the record really presents but one question, to wit, whether the plaintiff was a bona fide purchaser for value and before maturity of the acceptance which was admitted to have been executed by the defendants, and which is the foundation of the present suit. If the plaintiff purchased the paper for value, before its maturity, and without any notice of the defendants' counterclaim, the defendants would be precluded from setting up the defense which they attempted to present. As an innocent purchaser, the plaintiff would be protected, and entitled to recover upon the acceptance, no matter what might be the defendants' rights in a contest with the jewelry company. On the other hand, if the plaintiff really purchased the paper, or even took the formal written transfer, after its maturity, the plaintiff would be charged with notice, and subject to any equities which the defendants might be entitled to present as a defense to the action. The holder of a negotiable instrument is presumed to have purchased it for value, before its maturity, and without any notice of defects. Therefore, when the holder seeks to enforce the instrument, the burden rests upon the maker to prove affirmatively that the acceptance or other obligation was purchased after its maturity. The defendants attempted to do this, and the controlling question in this case is whether the acceptance was assigned to the plaintiff before its maturity. If it was not, the plaintiff would be entitled to recover, so far as that branch of the case is concerned. If it was, the defendants would be permitted to set up and establish...