Morgan's Inc v. Mons, 32519.

• Decision Date: 02 July 1949
• Docket Number: No. 32519.,32519.
• Citation: 79 Ga.App. 525,54 S.E.2d 498
• Parties: MORGAN'S, Inc. v. MONS.
• Court: Georgia Court of Appeals

79 Ga.App. 525

54 S.E.2d 498

MORGAN'S, Inc.

v.MONS.

No. 32519.

Court of Appeals of Georgia, Division No. 1.

July 2, 1949.

Syllabus by the Court.

The plaintiff having made out a prima facie case, and the defendant having assumed the burden of proof, his sole defense being that of a total failure of consideration for the note, and there being no evidence to authorize a finding by the jury of a total failure of consideration, a verdict for the plaintiff was demanded, and the trial judge erred in overruling the plaintiff's motion for a new trial.

Error from City Court of Millen; Milton A. Carlton, Judge.

Action by Morgan's Inc., against L. P. Mons, on note. There was a judgment for the defendant, and plaintiff brings error.

Judgment reversed.

W. C. Hawkins, Sylvania, Bouhan, Lawrence & Williams, Savannah, for plaintiff in error.

No appearance for defendant in error.

SUTTON, Chief Judge.

Morgan's Incorporated sued L. P. Mons in the City Court of Millen on a note for $2100, plus accrued interest and attorney fees. The jury returned a verdict for the defendant, judgment was rendered accordingly, and the plaintiff excepted to the over ruling of a motion for a new trial. The case is here on the general grounds of the motion.

The plaintiff introduced the note in evidence and rested. The note is dated October 2, 1942, and contains an unconditional promise to pay, for value received, $2100, on December 1, 1942, with interest at the rate of 7% per annum from maturity, and, if not paid, all costs of collection, including 15% attorney fees. It contains the usual waiver of homestead, is under seal, and is signed by L. P. Mons. The defendant, who conducted his own defense, admitted the execution and delivery of the note, and assumed the burden of proof. After some discussion with the trial judge as to the effect of his answer and the contentions he was making, the defendant agreed to a statement by the trial judge to the effect that his sole contention was that the note was executed and delivered to the plaintiff in consideration of the plaintiff releasing the Glens Falls Indemnity Company on a certain bond, and that this was never done. This issue, in substance, is made by paragraph 4 of the defendant's answer. The evidence indicates that the defendant was engaged in construction work and had se-cured certain materials from the plaintiff on open account, and would be unable to secure a bond for another project until he secured a release on the bond. C. L. Womack testified that he was an employee of the defendant and that at one time he heard a discussion about the bond, "and Mr. Mons and Mr. Morgan were arguing something about wanting the bond released so that Mr. Mons could get a new bond and get his money out and offered a note to settle it, and Mr. Mons said at the time he knew it was wrong but that he would sign the note to get the money out for the Statesboro job." This witness also testified that "Mr. Mons was asking Morgan's Incorporated to relieve him of the bond and get matters straight, to get the account straight, there being a difference between them as to the account." The defendant introduced a telegram in evidence, which is as follows: "L. P. Mons Care Morgan's Inc. 11 West Broad St. Savannah, Ga. Have Morgan wire us confirming telephone conversation. Contact Harrison in Millen. Atlanta Office Seibels Bruce & Co. Mgrs." At this point the defendant rested. C. R. Spivey was sworn as a witness for the plaintiff, and testified that he was employed by Morgan's Incorporated at the time L. P. Mons signed the note; that he saw him sign the note; that the two sheets shown him (which were later introduced in evidence) were from the books of Morgan's Incorporated and indicated a balance due by L. P. Mons of $2100, representing purchases at different times from August 18, 1941, to April 20, 1942; that on the day Mons signed the note there was a question raised by him about his being overcharged on his account; that G. P. Morgan promised to telephone the bonding company if Mr. Mons would sign the note, but that he did not promise a release; that the call was to assist Mr. Mons in getting a bond for another project, and was made after Mons signed the note. Sam Morgan, Secretary and Treasurer of Morgan's Incorporated, testified that his brother called Mr. Bruce over the telephone and told him that Mr. Mons had given a note, and that he would appreciate letting Mr. Mons have another bond; that Morgan's was not willing to release the bonding company, as the bonding company was the last resort in collecting the money, and that the reason Morgan's sold to Mons in the first place was because he was bonded. The plaintiff then rested, and L. P. Mons returned to the witness stand in rebuttal. His testimony indicates that Sam...