Patton v. Bank of La Fayette

• Decision Date: 19 February 1906
• Parties: PATTON et al. v. BANK OF LA FAYETTE.
• Court: Georgia Supreme Court

53 S.E. 664

124 Ga. 965

PATTON et al. v. BANK OF LA FAYETTE.

Supreme Court of Georgia

February 19, 1906

Syllabus by the Court.

An unverified plea of non est factum filed at the appearance term may be amended at the trial by allowing the defendant to swear to its averments. It is also proper at the trial term to allow an amendment to a plea to meet objections which have been pointed out by special demurrer.

In a suit by a corporation against an executor, the agent of the corporation is not incompetent to testify to his opinion as to the genuineness of the signature of the defendant's testator, his opinion being given as an expert and being based upon a comparison of the signature with other writings proved to be genuine.

In an issue of usury, where a sum of money apparently in excess of the legal rate of interest was retained by the lender, it is competent for a witness to testify that part of the same was received in payment of an independent claim, and not reserved as interest upon the loan.

The taking of interest for a portion of a year, computed on the principle that a year consists of 360 days, or 12 months of 30 days each, is not usurious, provided this principle is resorted to in good faith as furnishing an easy and practical mode of computation, and not as a cover for usury. Prior to the act of August 7, 1903, abolishing grace, in taking interest in advance on discounting a negotiable note payable at a chartered bank it was lawful to include the three days of grace in the computation.

Where the execution of a note is denied by a plea of non est factum, the note will not be received in evidence until some extrinsic evidence of its execution has been submitted. Slight evidence is sufficient to lay the foundation for its admission, but its sufficiency is for determination by the court. While it would have been better to have omitted any instruction embodying this rule of practice, the charge given does not require a new trial.

The indirect pecuniary interest of a notary in a note does not render him incompetent to protest it for nonpayment. The certificate of protest by a notary affords prima facie evidence of the facts therein recited. A charge pertinently stating these principles is not erroneous, nor is it rendered so by the court's characterization of the protest by the notary as a ministerial act.

The rule of court requires that all objections to evidence be urged and insisted upon at once, and, after a decision upon one or more grounds, no others afterwards urged shall be heard by the court. Where objections were made to evidence when offered and overruled, it was in the discretion of the court to refuse to exclude the evidence on a ground not urged to its admission, and this is especially true where the motion to rule out was made pending the argument and was predicated upon a failure to lay the proper foundation for the evidence sought to be excluded.

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by the Bank of La Fayette against I. N. Patton and others. From the judgment, both parties bring error. Affirmed.

In a suit by a corporation against an executor, the agent of the corporation is not incompetent to testify to his opinion as to the genuineness of the signature of defendant's testator; his opinion being given as an expert, and being based on a comparison of the signature with other writings proved to be genuine.

This was a suit upon a promissory note, brought by the Bank of La Fayette against the executors of Mrs. Helen A. Nevin, the plaintiff alleging that it had, in the course of its business, discounted the note for C. Rowell, and was the holder and owner thereof. The note was given for the principal sum of $1,500, was dated October 1, 1902, and was payable 90 days after date to the order of Helen A. Nevin, at the Bank of La Fayette, Ga., with interest at 8 per cent. per annum after maturity. It contained the usual waiver of homestead, was signed by C. Rowell, and purported to have been indorsed by Helen A. Nevin. Attached to the plaintiff's petition was a copy of a protest of the note for nonpayment on January 2, 1903, signed by a notary public. The defendants filed an answer in which they set up the plea of non est factum, and in which they challenged the sufficiency of the notarial protest, in that it did not appear therefrom when or where the note was presented, nor that notice was given to the indorser, nor that the protest was under seal. They also interposed the defense of usury alleging that Mrs. Nevin's relation to the note (if any) was that of a mere surety or accommodation indorser; that she had no personal dealings with the plaintiff bank, but that C Rowell, the maker, negotiated the note with the bank, which had knowledge that she was only a surety; that the bank charged Rowell $40 as interest on the sum of $1,460 for 90 days, without her knowledge or consent, and that her liability was thereby increased, inasmuch as the note contained a waiver of homestead and exemption rights, wherefore she and her estate were, by reason of said usury, released from any and all liability. On the trial which resulted in a verdict in favor of the plaintiff, the cashier explained that the note sued on was given to the bank by Rowell in renewal of one which had fallen due, and that the bank had charged him a "discount" of 8 per cent. on the face of the new note, amounting to $30, for the 90 days extension of his pre-existing debt. The witness further testified that the bank received from Rowell this $30, and possibly a protest fee on the other paper, of $2, making in the aggregate $32 paid by him when the note in suit was negotiated; but that only $30 of that amount was received by the bank as interest for the 90 days; and that the payment of the additional $2 was accepted in satisfaction of the protest fee upon the paper taken up by him. The case comes to this court upon a bill of exceptions sued out by the defendants, in which they except to the overruling of their motion for a new trial, and upon a cross-bill of exceptions in which the plaintiff complains that the court erred in overruling a demurrer to their answer and in allowing an amendment thereto.

Denny & Harris and F. W. Copeland, for plaintiff in error.

J. P. Shattuck and McHenry & Maddox, for defendant in error.

EVANS, J. (after stating the facts).

1. The answer of the defendants, as originally filed, was not sworn to, and for that reason the plaintiff demurred to the plea of non est factum. The demurrer came on to be heard at the trial term, and the court, after permitting the defendants to perfect their plea by verifying the answer under oath, overruled this ground of the demurrer. The defect in the plea being one which was amendable, the court properly allowed the defendants to meet the demurrer by swearing to the averments on which they based this defense. Ward v. Frick Co., 95 Ga. 804, 22 S.E. 899; Rodgers v. Caldwell, 122 Ga. 279, 50 S.E. 95. It was likewise proper for the court to permit the defendants, by an appropriate amendment to their answer, to overcome the further objection, urged in the plaintiff's demurrer, that they failed to point out wherein the protest of the note was inusfficient to preserve the rights of the holder of the note against the indorser.

2. The witness, J. E. Patton, testified, that he was the cashier of the plaintiff bank and owned three-fifths of its capital stock; that he received the note sued on, signed by the maker and indorsed by Mrs. Helen A. Nevin, as the agent of the bank; that by comparison of the signature of the indorser with other signatures of hers admitted to be genuine, and which were in evidence, he was of the opinion that the signature of Mrs. Nevin on the note was her genuine signature. A motion was made to exclude this evidence, on the ground that Mrs. Nevin was dead at the time of the protest of the note and that the witness was for that reason an incompetent witness to testify as to the genuineness of her signature. The court declined to rule out this testimony. The witness was not incompetent to testify to his opinion as to the genuineness of the signature, his opinion being given as an expert and based upon a comparison of the signature with the other writings proved to be genuine, and he not undertaking to testify concerning any transaction or communication with the deceased. Cato v. Hunt, 112 Ga. 140, 37 S.E. 183.

3. The witness Patton was permitted to testify, over the objection of the defendants, that he received with the note sued on $32, and applied $30 of the same to interest and $2 to a protest fee on another transaction. The objection was that this testimony was incompetent until some proof had been introduced of the existence of some other liability besides interest, and that the witness should not be permitted to testify as to any additional liability for a protest fee until proof was properly made of notarial action showing a liability for such fee. Whether or not there was a legal liability for the protest fee of $2 had no legal bearing upon the issue. Where a sum of money apparently in excess of the legal rate of interest was retained by the lender, it is competent for a witness to testify that part of the same was received in payment of an independent claim, and not reserved as interest upon the loan.

4. The method of the computation or casting of interest has been differently pursued in different jurisdictions. In some states it has been held by the courts of last resort that interest calculated and received upon a note upon the principle of 360 days being a year is usurious. As was held in N.Y. Firemen Ins. Co. v. Ely, 2 Cow. (N. Y.) 707 "The statute of usury speaks of years and not of months. Interest is to be at the rate of...