Jones v. Pope

• Court: Georgia Court of Appeals
• Writing for the Court: HILL, C.J.
• Citation: Jones v. Pope, 7 Ga.App. 538, 67 S.E. 280 (Ga. App. 1910)
• Decision Date: 11 March 1910
• Docket Number: 2,222.
• Parties: JONES et al. v. POPE.

67 S.E. 280

7 Ga.App. 538

JONES et al. v. POPE.

No. 2,222.

Court of Appeals of Georgia

March 11, 1910

Syllabus by the Court.

No error of law appears, and the evidence fully supports the verdict.

Error from City Court of Dublin; K. J. Hawkins, Judge.

Action by C. S. Pope against W. B. Jones and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. B Sanders and Davis & Hightower, for plaintiffs in error.

Jas. K Hines and P. L. Wade, for defendant in error.

HILL C.J.

Pope sued Walter B. Jones and A. B. Jones as makers and the Laurens Banking Company as indorser on two promissory notes payable to the banking company and indorsed to the plaintiff stipulating for interest at 8 per cent., and 10 per cent. as attorney's fees. The verdict was for the plaintiff, and the defendants excepted. Walter B. Jones pleaded payment. A. B. Jones pleaded that he was surety on the notes, and that he was released from liability because the notes were secretly tainted with usury, without his knowledge when he signed them, and that the notes contained waivers of all rights to homestead exemption, and his risk as surety was thereby increased. The Laurens Banking Company pleaded that it did not sell the notes sued on by the plaintiff, nor discount them, but that the plaintiff, at the instance of the makers of the notes, took them up, and only paid the bank what was actually due, and that the transfer of the notes by the cashier with recourse was without authority and was an inadvertence, and that it was not intended, either by Pope, or the Laurens Banking Company, or the cashier, that the notes should be transferred with recourse, but it was the understanding of Pope, the bank, and the cashier that they were to be transferred without recourse. Both the Joneses admitted notice as to attorney's fees. The banking company averred that it could neither admit nor deny this allegation, for want of information. On the general grounds of the motion for a new trial, the evidence as to the issues made by the several pleas was in conflict, and the verdict in favor of the plaintiff is fully supported. Several special assignments of error are made in the amended motion for a new trial, which we will briefly notice.

1. One of the grounds of the motion for a new trial is that the court erred in admitting, over objection, the following evidence of A. B. Jones: "At the time I reckon I knew the rate the bank charged a party borrowing money from it. From 10 to 12 per cent. was the rate. I was director in the Dublin Banking Company at the time, and it comes within my knowledge that the bank had an understanding about what rate of interest they charged. This rate was 12 per cent. on small amounts--from 9 to 12 per cent." The objection urged against this testimony was that it was not what rate of interest the bank might be accustomed to charge on loans, but what rate was charged in this particular transaction. We think the evidence objected to was admissible. A. B. Jones having defended on the ground that he was surety on the notes, and that the waiver of the homestead was void because of usury, and that as he had no notice of it when he signed the same as surety he was discharged, this evidence was a circumstance tending to rebut the truth of this defense, and to show knowledge on the part of the surety that there was in fact usury in the notes. We think this evidence was also admissible for the purpose of corroborating the presumption that the surety on a promissory note has knowledge of the circumstances of his principal at the time he becomes a surety. Graham v. Marks, 98 Ga. 70, 25 S.E. 931.

2. Another ground of the amended motion for a new trial is based upon an objection made to the admission in evidence of certain alleged checks. These checks are not set out, or even substantially stated in the ground, and this court cannot tell...