Thomas v. Shepherd, 20609.

• Decision Date: 19 January 1931
• Docket Number: No. 20609.,20609.
• Citation: 42 Ga.App. 558,156 S.E. 724
• Parties: THOMAS. v. SHEPHERD.
• Court: Georgia Court of Appeals

42 Ga.App. 558

156 S.E. 724

THOMAS.

v.SHEPHERD.

No. 20609.

Court of Appeals of Georgia,

Division No. 2.

Jan. 19, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Catoosa County; C. C. Pittman, Judge.

Action by P. W. Shepherd against J. T. Thomas. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Reversed.

Statement of facts by Jenkins, P. J.: This was a suit on a series of promissory notes payable to Thomas, for purchase money for realty, and indorsed by him to the plaintiff, Shepherd. All the parties lived in Tennessee at the time of the execution of the notes; the defendant having subsequently removed to Georgia. The notes contained no waiver of presentation, or demand, or notice of presentation, demand, and nonpayment. It is contended by the defendant that the verdict returned in favor of the plaintiff was not authorized because the proof failed' to show a presentation of the notes to the maker at maturity, or a demand for payment upon him. The notes were in a series, each containing a provision that "should this note or interest or any part thereof remain due and unpaid for thirty days after maturity then the remaining notes given for purchase money for said real estate may be treated as due and payable." The first of the series of notes matured on October 1, 1928. There is no proof going to show that any of the notes were ever presented at American Trust & Banking Company, Chattanooga, Tenn., where they were made payable.

It appears that in February, 1929, plaintiff wrote the defendant that Kissinger, the maker of the notes, had moved out of the house and advised that he would make no further payments. In this letter the plaintiff stated that he was starting foreclosure proceedings, and would look to defendant and the maker of the notes for any difference between the sale price and the indebtedness. The property was sold under foreclosure and bought in by the plaintiff for $100. On the trial the plaintiff testified to sending the letter referred to to the defendant, but did not testify to the facts narrated therein with reference to the house being vacated by Kissinger, the maker of the notes, nor did he testify, as was stated in the letter, that Kissinger advised he would make no further payments; his testimony with reference to his transaction with Kissinger being that "the "affairs between Mr. Kissinger and I got to the place where I had to foreclose on the property." He further testified to several conversations with the defendant in which he advised the defendant that the purchase-money notes were not being paid by Kissinger. There was no testimony going to show the formal presentation of any of the series of notes to Kissinger, or to the bank at which they were made payable; nor was there any testimony going to show that demand for payment of the entire series was made upon Kissinger, or that the entire series were presented to the bank, or to Kissinger, after the first note had remained...