Wheeler v. Salinger

• Decision Date: 17 December 1924
• Docket Number: 15832,15833.
• Citation: 125 S.E. 888,33 Ga.App. 300
• Parties: WHEELER v. SALINGER. SALINGER v. WHEELER.
• Court: Georgia Court of Appeals

125 S.E. 888

33 Ga.App. 300

WHEELER v. SALINGER.

SALINGER v. WHEELER.

Nos. 15832, 15833.

Court of Appeals of Georgia, Second Division

December 17, 1924

Syllabus by the Court.

The so-called exceptions pendente lite filed by the defendant the plaintiff in error in the main bill of exceptions, cannot be considered, because it appears that the trial judge expressly "refused" the same. The case is not altered by the fact that the judge thereupon prepared and signed a statement setting forth his rulings, and provided therein that "such facts as the court has certified to be true may be entered upon the minutes." Love v Love, 146 Ga. 160, 91 S.E. 27; Watkins v State, 29 Ga.App. 320, 114 S.E. 915.

Although it is true that with such "exceptions pendente lite" eliminated there is in the record no assignment of error upon the action of the court in directing a verdict for the plaintiff, this is not cause for dismissing the bill of exceptions brought by the defendant, as suggested in the brief of counsel for the plaintiff, since error is duly assigned therein upon the overruling of the defendant's motion for a new trial. Gray v. Phillips, 88 Ga. 199 (5), 14 S.E. 205; Crouch v. Spooner, 8 Ga.App. 626 (1), 69 S.E. 1129.

A provision in a promissory note that the maker will pay "attorney's fees" if the note is "placed in the hands of an attorney for collection" constitutes a sufficient contract by the maker, in case of liability upon the note, to authorize the recovery of reasonable attorney's fees against him in an action through an attorney upon the note, upon proof of a compliance with Civil Code 1910, § 4252, and of the reasonable value of the attorney's services in the premises. Brooks v. Boyd 1 Ga.App. 65 (6), 57 S.E. 1093; Proctor v. Crooker, 129 Ga. 733, 59 S.E. 781. It would be improper, in such a case, to direct a verdict for the attorney's fees, but, as indicated above, there is no proper exception to such direction in the present case.

It would be immaterial that the plaintiff, who sued in his own name as an individual, alleged and failed to prove that he was a trader doing business under some other name stated, even though such averment was denied, provided the plaintiff otherwise established his title to the cause of action. "Where a promissory note is payable to a named person or order, or to the order of a named person, and is indorsed in blank, it is then, until the blank is filled, payable to the holder, and any holder may receive payment, or sue and collect. The payee's order to pay to any holder is not revoked or canceled by the order of some other person to pay to a particular individual." Habersham v. Lehman, 63 Ga. 380 (1), 383. Thus, whether the name appearing on the back of the note as that of an indorser to the order of another for collection, following certain blank indorsements, was shown to be the plaintiff's trade-name as alleged, it sufficiently appeared that the plaintiff, who was in possession of the note suing thereon, was the holder of the legal title thereto.

In an action by an indorsee upon the note the indorsement need not be proved unless denied on oath. Civil Code 1910, § 4299. An averment in an answer to such suit, that the "defendant denies that the plaintiff is a bona fide holder and owner of the note sued upon, or any note executed by this defendant, or that it has the right to sue the same," does not amount to a denial of the genuineness of the indorsement, and hence does not call for proof of the same.

The plea of non est factum as embraced in paragraph 6 of the defendant's answer was not ousted as a pleading by other matter in the answer setting up additional separate and distinct defenses, although the inference of the execution of the note might have been drawn from such other matter. The defendant may file inconsistent and contradictory pleas. Civil Code 1910, § 5649; White Sewing Machine Co. v. Horkan, 7 Ga.App. 283 (2), 66 S.E. 811; Jones v. Forehand, 89 Ga. 520 (1), 16 S.E. 262, 32 Am.St.Rep. 81; Kerr Glass Co. v. Americus Grocery Co., 13 Ga.App. 512 (2), 79 S.E. 381; Watters v. Freeman, 16 Ga.App. 595, 85 S.E. 931; Mendel v. Miller, 134 Ga. 610 (2), 68 S.E. 430; Wade v. Watson, 129 Ga. 614 (2), 59 S.E. 294.

But the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made in one of the pleas, though in another part of the answer there is set up a contradictory state of facts. White Sewing Machine Co. v. Horkan, 7 Ga.App. 283 (2), 66 S.E. 811. "Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other." Civil Code 1910, § 5775. Where matter is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in his favor. New Zealand Insurance Co. v. Brewer, 29 Ga.App. 773 (6), (7), 116 S.E. 922; Sims v. Ferrill, 45 Ga. 585 (3); Hickson v. Bryan, 75 Ga. 392 (2).

Although it is true that, where the execution of a note is denied by a plea of non est factum, the note should not be admitted in evidence until some extrinsic proof of its execution has been submitted (Patton v. Bank of La Fayette, 124 Ga. 965 [5], 53 S.E. 664, 5 L.R.A. [ N. S.] 592, 4 Ann.Cas. 639), and although it be conceded (no decision upon the point being here necessary) that, where the note is admitted in evidence without objection, and the failure to object at the time does not appear to have been intended as an admission of its execution or as a waiver of the failure to supply the preliminary evidence, the defendant does not lose the right to move, at any time before the case is submitted to the jury, to have the note excluded from evidence, on motion then made (Patton v. Bank of La Fayette, 124 Ga. 965 [[7], 53 S.E. 664, 5 L.R.A. [ N. S.] 592, 4 Ann.Cas. 639; Blount v. Beall, 95 Ga. 182 [4], 22 S.E. 52), yet the defendant's answer in the case now under consideration contained matter, especially in view of the contradictory and inconsistent nature of the defenses asserted, which could have been taken as sufficient extrinsic evidence of the execution of the note to warrant its admission in evidence, and also as evidence sufficient to authorize a verdict in favor of the plaintiff upon the issue of non est factum, when it was not met by any proof whatsoever in support of the plea. This latter is true notwithstanding that before a plaintiff will be entitled to prevail over such defense, the burden is upon him to prove the execution of the paper by a preponderance of the evidence. Bank of Norwood v. Chapman, 19 Ga.App. 709 (6), 92 S.E. 225. The court, therefore, did not err in overruling the motion to exclude the note from evidence, based upon the ground that no foundation had been laid for its introduction; and since the defendant offered no evidence whatsoever, either upon the issue of non est factum or otherwise, it cannot be said that the verdict in favor of the plaintiff was without evidence to support it.

"Before the trial judge is authorized to grant a new trial on newly discovered evidence, it must appear that the movant or his counsel could not, by ordinary diligence before the trial, have discovered such evidence offered as newly discovered. Since a motion for a new trial upon the ground of newly discovered evidence, and the showing made in support of such motion, are addressed to the sound discretion of the trial judge (Burnett v. Neves, 82 Ga. 241, 9 S.E. 128; Featherston v. Rounsaville, 73 Ga. 617; Exchange Bank v. Cone, 18 Ga.App. 432, 89 S.E. 489; Civil Code 1910, §§ 6085, 6086), a bare recital in the affidavit of the movant or his counsel that the newly discovered evidence offered 'could not have been discovered by the exercise of ordinary care' is but a mere conclusion, without a disclosure of the facts upon which such conclusion is based, and the trial judge is not bound to conclude that the affiant had exercised the required diligence. Taylor v. State, 132 Ga. 235, 237, 63 S.E. 1116; Patterson v. Collier, 77 Ga. 292, 3 S.E. 119." Evans v. Grier, 29 Ga.App. 426 (3), 115 S.E. 921; Holder v. Farmers' Exchange Bank, 30 Ga.App. 400 (6, 7), 118 S.E. 467.

As indicated above, the only questions properly raised for decision are contained in the motion for a new trial, and since there is no valid...