Willis v. Seiberling Rubber Co
| Decision Date | 21 December 1931 |
| Docket Number | No. 21326.,21326. |
| Parties | WILLIS . v. SEIBERLING RUBBER CO. |
| Court | Georgia Court of Appeals |
Error from Superior Court, Tift County; R. Eve, Judge.
Action by the Seiberling Rubber Company against Wheeler Willis. There was a judgment for plaintiff, and defendant brings error.
Affirmed.
Smith & Ferguson, of Tifton, for plaintiff in error.
Steve F. Mitchell and Ellis, Mitchell & Ellis, all of Tifton, for defendant in error.
Syllabus Opinion by the Court
1. "Under a denial of the allegations in the plaintiff's declaration, no other defense is admissible except such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded." Civ. Code 1910, § 5636.
2. In a suit against a partnership and its members upon a check purporting to have been executed by one of the members in behalf of the partnership, an answer by one of the members which first contained a mere general denial of indebtedness, but which was amended so as to allege that the check was executed by the other member after the dissolution of the partnership, of which dissolution the plaintiff had notice, did not amount to a plea of want of consideration nor of total or partial failure of consideration, nor of any other affirmative defense, except that the person who executed the check had no authority to bind the partnership, for the reason that the partnership had been dissolved, with notice to the plaintiff. Civ. Code 1910, § 3164; Bennett v. Watson, 31 Ga. App. 367 (4), 120 S. E. 802, and cases cited.
3. A check, being a negotiable instrument, imports a valid and sufficient consideration, and in a suit upon such an instrument it is unnecessary for the plaintiff to allege or prove a consideration therefor, but a consideration will be presumed until the contrary appears. Purcell v. Armour Packing Co., 4 Ga. App. 253 (3), 61 S. E. 138.
4. Although in a suit upon a check against the make* it is ordinarily essential to a recovery that the plaintiff should prove that the cheek was duly presented to the drawee and payment thereof refused, the check itself may be admitted in evidence before proof of such presentation and refusal. The check, being only one of a series of facts necessary to constitute the cause of action, need not be withheld from evidence until the other ingredients of the cause of action are established. Germania Bank v. Trapnell, 118 Ga. 578 (2), 45 S. E. 446; Bank of Richland v. Nicholson, 120 Ga. 622 (2), 48 S. E. 240; Ga. L. 1924, pp. 126, 163, § 185; 8 C. J. 1059.
5. Nor was it necessary for the plaintiff to prove the execution of the check before introducing it in evidence; the suit being founded directly upon the instrument, and no plea of non est factum having been filed. Anderson v. Blair, 121 Ga. 120 (3), 48 S. E. 951, 2 Ann. Cas. 165; Jones v. Bank of Powder Springs, 31 Ga. App. 263 (1), 120 S. E. 422. The plea filed fully accounted for the execution of the check, and set up an affirma-tive defense as to which the defendant had the burden of proof; it not amounting to such a plea of no partnership as would cast the burden upon the plaintiff. Civ. Code 1910, § 3166; Higdon v. Williamson, 140 Ga. 1S7 (2), 78 S. E. 767; Atlanta Trust Co. v. Willingham, 20 Ga. App. 152, 92 S. E. 759; Wiggins v. McCalla, 20 Ga. App. 739 (2), 93 S. E. 231; Cooke v. Faucett, 35 Ga. App. 209 (1), 132 S. E. 268.
(a) Under the rulings made in this and the preceding paragraph, there was no merit in special grounds 1 and 3 of the defendant's motion for a new trial.
6. Special grounds 4 to 13, inclusive, of the amendment to the motion for a new trial, complain of the admission of evidence introduced by the plaintiff, and relating solely to the consideration for the check, but, since the defendant's plea raised no question of consideration, and since the plaintiff was not required to make proof of such consideration in order to recover, it is immaterial whether the evidence by which the plaintiff sought to establish consideration was admissible or not, and the defendant was not harmed by the admission of such evidence, even assuming that it was incompetent and objectionable, as contended.
7. In ground 14 it was contended that the evidence demanded a...
To continue reading
Request your trial
- Willis v. Seiberling Rubber Co.
-
Carithers v. Maddox
... ... 398(8), 191 S.E. 379; ... Gibson v. Mason, 31 Ga.App. 584(1), 121 S.E. 584; ... Willis v. Seiberling Rubber Co., 44 Ga.App. 468(8), ... 161 S.E. 789 ... 2. The ... ...
-
Carithers v. Maddox
...v. Citizens Bank & Trust Co., 184 Ga. 398(8), 191 S.E. 379; Gibson v. Mason, 31 Ga.App. 584(1), 121 S.E. 584; Willis v. Seiberling Rubber Co., 44 Ga.App. 468(8), 161 S.E. 789. 2. The second special ground of the motion alleges error because the court refused to allow the defendant to answer......