Twyman v. Avera Loan & Inv. Co

• Decision Date: 14 December 1918
• Docket Number: (Nos. 9813, 9814.)
• Citation: 23 Ga.App. 136,98 S.E. 239
• Parties: TWYMAN . v. AVERA LOAN & INVESTMENT CO. AVERA LOAN & INVESTMENT CO. v. TWYMAN.
• Court: Georgia Court of Appeals

23 Ga.App. 136

98 S.E. 239

TWYMAN .

v.AVERA LOAN & INVESTMENT CO.

AVERA LOAN & INVESTMENT CO.

v.TWYMAN.

(Nos. 9813, 9814.)

Court of Appeals of Georgia,

Division No. 2.

Dec. 14, 1918.

On Motion for Rehearing, Feb. 11, 1919.

(Syllabus by the Court.)

The following cases support the general proposition that "one who executes and delivers a promissory note without reading or knowing its contents cannot avoid liability thereon because he acted ignorantly, without showing some justification of his ignorance, either by reason of his inability to read or by some misleading device or contrivance amounting to fraud on the part of the person with whom he was dealing": Barnes v. Slaton Drug Co., 21 Ga. App. 580, 94 S. E. 896: Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (2), 94 S. E. 892; Levy v. Bixler Co., 20 Ga. App. 766, 93 S. E. 233(1); Sloan v. Farmers' & Merchants' Bank, 20 Ga. App. 123 (a), 125 (a), 92 S. E. 893; Parker v. Parrish, 18 Ga. App. 258 (2), 89 S. E. 381; Bostwick v. Duncan, 60 Ga. 384; Radcliffe v. Biles, 94 Ga. 480, 20 S. E. 359; Jossey v. Ga. S. & F. Ry. Co., 109 Ga. 439, 446, 34 S. E. 664; Walton Guano Co. v. Copelan, 112 Ga. 319 (1), 320 (1), 37 S. E. 411, 52 L. R. A. 268; Georgia Medicine Co. v. Hyman, 117 Ga. 851, 45 S. E. 238; Harrison v. Wilson Lumber Co., 119 Ga. 6 (2), 8 (2), 45 S. E. 730; Stoddard Mfg. Co. v. Adams, 122 Ga. 802, 50 S. E. 915; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2), 56 S. E. 1030; Baker v. Patton, 144 Ga. 502, 57 S. E. 659. Applying the rulings in these cases to the facts of the instant case, the court did not err in directing a verdict for the plaintiff.

On Motion for Rehearing.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Twiggs County; J. L. Kent, Judge.

Action by the Avera Loan & Investment Company against Reuben Twyman. Judgment for plaintiff upon a directed verdict and defendant excepts and brings error, and plaintiff takes a cross-bill of exceptions. Judgment on main bill of exceptions affirmed and cross-bill dismissed.

L. D. Moore, of Macon, for plaintiff in error.

B. J. Fowler, of Macon, for defendant in error.

BLOODWORTH. J. Judgment on main bill of exceptions affirmed.

Cross-bill dismissed.

BROYLES, P. J., concurs.

STEPHENS, J., not presiding.

On Motion for Rehearing.

BLOODWORTH, J. The motion for rehearing in this case is based upon the ground that the court overlooked the following evidence of defendant:

"He just handed me the deed and the other papers, and said, 'Sign here, right here, ' and I thought I was signing a receipt for the deed. * * * He did not read to me this paper. I did not read the paper. Mr. Walker did not read it to me. I could not read it. No one read it to me."

The court did not overlook the above-quoted evidence. It is a well established principle of law that, where the evidence of a party "bears two constructions, the one less favorable to his interest should be adopted." Burkhalter v. Oliver, 88 Ga. 478, 14 S. E. 704; Baggett v. Trulock, 77 Ga. 369, 3 S. E. 162 (3); Southern Railway Co. v. Hobbs, 121 Ga. 428, 49 S. E. 294; Horne v. Peacock, 122 Ga. 45, 49 S. E. 722 (2). In Western & A. R. Co. v. Evans, 96 Ga. 486, 23 S. E. 495, Justice Lumpkin said:

"A party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and, if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him. Being peculiarly in a position to state fairly and definitely the facts which he professes to know, he is under a duty of so stating them as to give a candid and intelligible account of what occurred. The courts are also authorized to give great weight to statements unwillingly made upon cross-examination, when these statements have every appearance of being the real truth, though reluctantly told."

On cross-examination the defendant said:

"I can write and read the English language. I can write some and read a little bit—nothing to amount to anything."

In the evidence there is nothing to show that the...