Watkins v. Woodbery

• Decision Date: 17 July 1919
• Docket Number: (No. 9956.)
• Citation: 100 S.E. 34,24 Ga.App. 80
• Parties: WATKINS. v. WOODBERY et al.
• Court: Georgia Court of Appeals

24 Ga.App. 80

100 S.E. 34

WATKINS.

v.WOODBERY et al.

(No. 9956.)

Court of Appeals of Georgia, Division No. 1.

July 17, 1919.

(Syllabus by the Court.)

Error from Superior Court, Gilmer County; N. A. Morris, Judge.

Action by W. H. Woodbery and others against E. W. Watkins. Judgment for plaintiffs, and defendant brings error. Affirmed.

See, also, 96 S. E. 338.

A. H. Burtz, of Ellijay, and D. W. Blair, of Marietta, for plaintiff in error.

Wm. Butt, of Blue Ridge, and Tye, Peeples & Tye, of Atlanta, for defendants in error.

JENKINS, J. [1-5] It is only the fifth headnote which is thought to require elaboration. Sam Tate, W. H. Woodbery, and E. W. Butt brought suit against E. W. Wat-kins, alleging that the plaintiffs, together with the defendant, were joint makers of certain notes; that the plaintiffs, together with all the other makers except Watkins, had paid off the notes, while Watkins had paid nothing, and that by reason of these facts Watkins was liable to the plaintiffs in designated sums by way of reimbursement and contribution. Watkins admitted signing the notes, hut denied liability thereon, alleging that he had never received any consideration, and alleged that he signed the notes at the solicitation of the plaintiffs, and with the understanding then had between him and the plaintiffs that "he was not to be liable" thereon, and that he was a mere accommodation maker or indorser. The present suit proceeded in the names of Woodbery and Butt only, it having been previously disposed of as to the plaintiff Tate. The record shows the four certain banks in North Georgia and one in Tennessee, among them being the North Georgia National Bank of Blue Ridge, Ga., and the Gilmer County Bank of Ellijay, Ga., were, in the fall of 1911, about to fail. The defendant was at the time a director and stockholder of the North Georgia National Bank, president of the Gilmer County Bank, and also a depositor. The plaintiffs and the defendant, together with 13 other persons, executed two notes, each dated November 1, 1911, one for $75,000 and the other for $25,-000, for the purpose of raising money to preserve the solvency of these banks. The $100,-000 was thus raised, and was used for the benefit of each of the five banks. This $100,-000 indebtedness, evidenced by the two notes mentioned above, was renewed from time to time, by the giving of renewal notes, and finally payment was made of the last renewal notes, which were each joint and several notes, and each signed by said 16 persons, Watkins, the defendant, being one. To the payment of the $100,000 each of the 16 persons contributed, with the exception of the defendant, who has paid nothing. The contributions made by some of the 15 were quite small, three of them being insolvent. Tate paid $35,538.SS, Woodbery $25,000, and Butt $11,000. These three were the only persons of the 15 who paid more than would have been their proportionate share, and they brought suit against Watkins for contribution. No question as to misjoinder of parties plaintiff was raised, and, as already stated, the case had been disposed of as to the plaintiff Tate, and this trial involved only the amounts claimed by Woodbery and Butt, being $1,445.58 and $278.91, respectively. At the conclusion of the introduction of the testimony the court, upon motion, directed a verdict in favor of the plaintiffs, and the defendant excepted.

That the plaintiffs, if entitled to recover at all, are entitled to the amounts claimed by them respectively is not questioned; the contention of the defendant being that he was merely an accommodation maker or indorser, that he received none of the consideration, and that he was induced to sign the notes by the representations of the plaintiffs that he would never have them to pay or be called upon to pay them. The fact that the banks for whom the money was borrowed (of one of which the defendant was a stockholder and director, and of another of which he was president and a depositor) received the money thus borrowed is undisputed. The defendant's plea of failure of consideration is therefore not supported by the evidence. Granting, for the sake of the argument only, that the defendant was merely an accommodation maker or indorser, when accommodation parties get for and through another the exact consideration which they contemplate it is the same as if they receive it themselves, and a plea of want of consideration is not good. Farrar v. Bank of New York, 90 Ga. 333, 17 S. E. 87. This leaves only the defense that the defendant was induced to sign the notes by the representations of the plaintiffs that he would never have the notes to pay.

Were this a suit against the defendant upon the notes themselves by the payees thereof, the defendant having admitted signing the unconditional promissory notes, and the undisputed evidence showing that he received the consideration contemplated at the time he signed them, the plea of the defendant,...