Whitney v. Butts

• Decision Date: 04 January 1893
• Parties: WHITNEY v. BUTTS.
• Court: Georgia Supreme Court

16 S.E. 649

91 Ga. 124

WHITNEY v. BUTTS.

Supreme Court of Georgia

January 4, 1893

Syllabus by the Court.

1. In a suit upon a promissory note against a maker and indorser, (not an accommodation indorser,) judgment having been rendered in plaintiff's favor against the indorser, but in favor of the maker upon a plea of payment by the latter, and the plaintiff having obtained a new trial as against him only, the judgment remaining of full force against the indorser, these facts will not estop the indorser, on a second trial between the plaintiff and the maker, from testifying that the note was in fact paid to him by the maker, and by himself to the plaintiff, before the suit was brought. While the judgment against the indorser is conclusive and binding upon him, and he would be estopped from availing himself, by his own or any other evidence, of any fact inconsistent with that judgment, he is not estopped from testifying, as a witness in favor of the maker, to facts inconsistent therewith. As somewhat analogous, see Geise v. Blumenthal, 14 S.E. 479, 88 Ga. 285.

2. The indorser having testified that the maker had paid the note to him, and that he had paid the same to the plaintiff, in cotton, before the suit was brought, it was error to reject, as evidence tending to affect the credit of the witness, the judgment rendered against him, there being other evidence tending to show that he had made no defense, but acquiesced in the judgment, had made no motion for a new trial, nor otherwise attempted to set the same aside. The testimony of a witness may be attacked by showing conduct on his part, in the nature of admissions inconsistent with such testimony, as well as by proof of contradictory statements.

Error from superior court, Hancock county; W. F. JENKINS, Judge.

Action by S. M. Whitney against D. L. Butts, as maker, and Simmons as indorsee, on a promissory note. There was a judgment against Simmons, but in favor of Butts. A new trial was denied, and plaintiff brings error. Reversed.

R. H. Lewis, for plaintiff in error.

Reese & Little and J. H. Lumpkin, for defendant in error.

PER CURIAM.

Judgment reversed.