Willis v. Seiberling Rubber Co.
| Decision Date | 21 December 1931 |
| Docket Number | 21326. |
| Citation | 161 S.E. 789,44 Ga.App. 468 |
| Parties | WILLIS v. SEIBERLING RUBBER CO. |
| Court | Georgia Court of Appeals |
Syllabus OPINION.
Answer containing general denial to suit on alleged partnership check and alleging check was executed by other partner after dissolution held not plea of want of consideration nor of total or partial failure of consideration necessitating pleading such defense specially (Civ. Code 1910, § § 3164, 5636).
Allegation that other partner executed, after partnership dissolution alleged partnership check sued on, held affirmative defense only in alleging maker had no authority to bind partnership (Civ. Code 1910, § 3164).
In suit on check, plaintiff need not allege and prove consideration since check is negotiable instrument, and consideration being presumed.
In suit on check, check may be admitted in evidence before plaintiff's proof of presentation to drawee and drawee's refusal to pay.
The check, being only one of a series of facts necessary to constitute cause of action, need not be withheld from evidence until the other ingredients of the cause of action are established.
In suit on check, proof of check's execution before introducing it in evidence held unnecessary; no plea of non est factum having been filed.
Partner's plea that alleged partnership check sued on was executed by other partner after dissolution held insufficient as plea of no partnership as would cast burden on plaintiff (Civ. Code 1910, § 3166).
In suit on check, where consideration was not in issue, admission of evidence relating to consideration, even if incompetent, held harmless error.
Trial court held not required to grant new trial in suit on partnership check because verdict was excessive as to defense raised by evidence, but which was not pleaded.
It was contended that the evidence demanded a finding that defendant in such suit notified plaintiff's agent that defendant would consent to be liable only for a limited sum on contracts of his copartner, and therefore that the verdict for the amount of the check, which was in a much larger sum, was excessive.
Denial of nonsuit cannot be reviewed by motion for new trial, but should be made subject of direct exception.
General ground of motion for new trial, not insisted on, will be deemed to have been abandoned.
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.
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 maker it is ordinarily essential to a recovery that the plaintiff should prove that the check 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 affirmative defense as to which the defendant had...
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