Maynard v. Rawlins

• Decision Date: 01 March 1932
• Docket Number: 21648.
• Citation: 163 S.E. 269,45 Ga.App. 91
• Parties: MAYNARD v. RAWLINS et al.
• Court: Georgia Court of Appeals

163 S.E. 269

45 Ga.App. 91

MAYNARD v. RAWLINS et al.

No. 21648.

Court of Appeals of Georgia, Second Division

March 1, 1932

Syllabus by Editorial Staff.

Verdict based on unobjected to secondary evidence proving contents of note sued on held sufficiently supported.

Testimony of witness at former trial of same case between same parties in absence of witness, has same probative value as original testimony (Civ. Code 1910, § 5773).

In suit on partnership note, evidence held sufficient to authorize verdict that alleged partner denying partnership was partner.

Partner may bind partnership by executing note under seal, although his authority to bind partnership was not conferred by instrument under seal.

Partners' dissolution agreement made after execution of partnership contract sued on, reciting contracts made by specified partner would be carried out by other partner, held admissible as such other partner's admission of liability on contract, regardless of whether he knew of existence of contract.

Error from Superior Court, Barrow County; W. W. Stark, Judge.

Suit by W. F. Rawlins and others against T. A. Maynard and others. To review the judgment for plaintiffs, named defendant brings error.

Affirmed.

Robt. L. Russell and Clifford Pratt, both of Winder, for plaintiff in error.

Joe Quillian, of Winder, for defendants in error.

Syllabus OPINION.

STEPHENS J.

1. Secondary evidence, such as parol evidence, as to the contents of a written instrument, is sufficient to establish the contents of the instrument, and, where it is admitted without objection, a verdict found in a suit to recover upon the instrument is not contrary to the evidence, upon the ground that the contents of the instrument were not proved. Munroe v. Baldwin, 145 Ga. 215, 88 S.E. 947; Georgia Coast R. v. Herrington, 14 Ga.App. 539, 81 S.E. 814.

2. The testimony of a witness delivered at a former trial of the same case between the same parties, when admitted in evidence on a second trial in the absence of the witness, has probative value as original testimony. Civil Code 1910, § 5773.

3. Where, on the trial of a suit upon a note, instituted by the transferee against the maker, testimony of a witness delivered on a former trial of a suit upon the same note between the same parties, was admitted, by agreement of counsel without objection that it was parol testimony as to the existence of the note and its contents, the verdict found for the plaintiff was not subject to the objection that it was without evidence to support it, in that the note had not been produced and introduced in evidence.

4. In a suit against a partnership styled "Pinetucky Development Company," alleged to be composed of T. A. Maynard and R P. Jackson, to recover upon a promissory note purporting on its face to have been executed by the partnership by one of the defendants, viz. R. P. Jackson, as partner, where the other defendant, T. A. Maynard, denied the existence of the partnership, denied liability, and averred that the note was the individual undertaking of the defendant Jackson, who signed it, and that its execution was a fraud perpetrated by him and the payee on the defendant Maynard for the purpose of depriving Maynard of a defense against another note of which the note sued on was executed as a renewal, where there was evidence to authorize the inference that at the time of the execution of the note sued on the defendants had formed a partnership which was to carry on the farming operations of "the Pinetucky Development Company" with which the defendant Maynard had in some way been associated, and that the partnership was engaged in farming operations, that the note sued on was a renewal of a note which some one connected with Pinetucky Development Company had, before the formation of the partnership by the defendants, executed for the purchase price of a boiler, bought for the defendant Maynard "or the Pinetucky Development Company," that by the terms of the partnership agreement the partnership assumed the payment of the note executed for the purchase price of the boiler, and the "effects belonging to Pinetucky Development Company" should belong to the partnership, and the partner, Jackson, was given the power "to sign all notes," that the boiler afterwards became partof the assets of the partnership composed of the defendants Maynard and Jackson, that, after the execution...