Mackin v. Blalock

• Decision Date: 20 November 1909
• Citation: 66 S.E. 265,133 Ga. 550
• Parties: MACKIN v. BLALOCK.
• Court: Georgia Supreme Court

66 S.E. 265

133 Ga. 550

MACKIN v. BLALOCK.

Supreme Court of Georgia

November 20, 1909

Syllabus by the Court.

The indorsee of a duebill, containing no negotiable words, is chargeable with notice of all defects in the consideration although he takes it for value and before due.

The plea of want of consideration was good as against a general demurrer.

A verification to a plea to an action founded on an unconditional contract in writing is sufficient where the defendant swears that the facts stated therein are true to the best of his knowledge and belief.

Where a case has been tried by a jury and a verdict rendered therein and the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable.

Error from Superior Court, Fayette County; E. J. Reagan, Judge.

Action by W. J. Mackin against S. T. Blalock. Judgment for defendant, and plaintiff brings error. Affirmed.

Lamar Rucker and W. P. Bloodworth, for plaintiff in error.

J. W Wise, W. B. Hollingsworth, and Anderson, Felder, Rountree & Wilson, for defendant in error.

EVANS P.J.

Mackin brought suit against Blalock on the following instrument: "$7000.00. Hot Springs, Ark., Feb. 27, 1905. For value received, I owe J. Henry Peyser Seven Thousand dollars ($7000.00). [Signed] S. T. Blalock." "Pay to the order of William J. Mackin. [Signed] J. Henry Peyser." In his answer the defendant, after denying indebtedness, specially pleaded "that he has no recollection whatever of having given to J. Henry Peyser any note or paper, and for that reason can neither admit nor deny that he signed the paper sued on, and for the same reason he cannot state the facts and circumstances under which said paper was executed, if at all by him; but this defendant states positively that, if said paper was signed by him, it is a nudum pactum, for the reason that it was executed without consideration, either good or valuable, to him or any one else, and without injury, loss, or detriment to the said Peyser, or any one else. And this defendant specifically avers that with the exception of an indebtedness to said Peyser of about $300, which was subsequently paid by check, he owed the said Peyser nothing, and was not indebted to the said Peyser in any sum whatever at the time when said paper purports to have been signed, or at any time thereafter, and was under no obligation or liability to said Peyser of any character whatever, and no money or other thing of value passed from said Peyser to this defendant or any one else at his instance or request, either at the time said paper purports to have been signed or at any time thereafter." At the trial term the plaintiff demurred generally to the sufficiency of the plea, and the court overruled the demurrer. He then moved to strike the answer, because it was not positively verified, which motion the court denied. The case proceeded to trial, and eventuated in a verdict for the defendant, upon which a judgment was entered. The plaintiff sued out a bill of exceptions assigning error on the action of the court in permitting the verdict to be rendered and judgment entered thereon, and on the ruling on the demurrer and the motion to dismiss.

1, 2. Counsel for plaintiff in error characterizes the special plea as a plea of non est factum, and points out its deficiency as such. We concede that the plea is not as good as a plea of non est factum; but we think that, as against a general demurrer, the plea is good as a plea of want of consideration. The writing sued...