Wyche v. Bank of Campbell County , 1925 Ga. LEXIS 350 ( 1925 )

Gilbert, J.

1. The holder of a note is presumed to be such bona fide, and for value. Civil Code (1910), § 4288. Eor collections of cases see 1 Stevens I. D. Ga. 276; 2 Mich. Enc. Dig. Ga. R. Cum. Supp. 835.

2. “The holder of a note as collateral security for a debt stands upon the same footing as the purchaser.” Civil Code (1910), § 4289.

3. A transferee of a negotiable promissory note, who received the note from the payee before maturity as collateral security without notice of any equities existing between the maker and the payee, is a bona fide holder for value. Civil Code (1910), § 4286; Linderman v. Atkins, 143 Ga. 366 (2) (85 S. E. 101).

4. “Where such a holder of a negotiable promissory note, who has received it from the payee merely as collateral security, sues the maker of such note, if the maker has a valid defense against the original payee, he can by appropriate plea set up such defense; and if it be sustained, the holder can recover no more than the debt which the collateral secured.” Linderman v. Atkins, supra.

5. Error is assigned on the judgment of the court repelling evidence, as follows: Counsel for defendant Wyche, the latter being sworn as a witness, propounded, on direct examination, the following questions: “Q. After this trade between you and Mr. Cook was made did Mr. Cook visit your home? A. He was at my house on the 4th day of January, 1922. Q. On that visit what did he say, if anything, about whether he still held this note? A. He demanded payment.” This evidence, on objection, was held inadmissible. Thereupon counsel for plaintiff in error said, “In order to perfect the record, we want to prove by the witness on the 4th day of January, 1922, Mr. Cook paid him a visit and demanded of him payment of this note. Of course we admit that at the time Cook didn’t have the note with him, but we claim that he owned it.” It is insisted that the evidence, under the pleadings, was material, relevant, and admissible, and that its rejection by the court was contrary to law. A portion of the evidence appears in the brief of evidence as a part of the evidence in the case. The remainder, to the effect that Cook, the payee, demanded payment of the note after maturity, was a declaration, hearsay in character, and was properly rejected. Harris v. Bank of Little Rock, 107 Ga. 407 (33 S. E. 404).

6. Error is assigned on the judgment of the court repelling evidence, as follows: Counsel for Wyche, the latter being sworn as a witness, propounded, on direct examination, the following questions: “Q. Did you and Mr. Cook make any trade about some land in Campbell County? A. Yes sir. Q. I will get you to state what that trade was.” Objection being made by the plaintiff, the following colloquy occurred: “By the court: The note is indorsed in blank? Mr. Culpepper [counsel for plaintiff] : Yes. Mr. Hall [counsel for defendant Wyche] : Yes.” Held, that this assignment of error is incomplete, in that it does not appear what answer the witness would have made if allowed to answer; and consequently no question is presented for decision. Wadley Southern Ry. Co. v. State, 137 Ga. 497 (7) (73 S. E. 741); Artesian Lithia Water Co. v. Central Bank & Trust Corp., 138 Ga. 618 (75 S. E. 646); Rogers v. Condon, 144 Ga. 390 (3) (87 S. E. 397); Featherston v. American National Bank, 146 Ga. 13 (90 S. E. 282); Cobb v. Coffey, 149 Ga. 264 (99 S. E. 864); Colbert v. Pitner, 157 Ga. 690 (5) (122 S. E. 315).

No. 4896. November 17, 1925.

7. Error is assigned on the judgment of the court as follows: “During the trial of the case plaintiff in error offered Mr. Will Tidwell as a witness, for the purpose of proving by him that on January 4, 1922, he was present at a conference between C. C. Wyche and H. W. Cook, and that Cook refused to give Wyche a bond for title to the land he contracted to sell him, and refused to accept Wyehe’s notes for balance of purchase-money unless Wyehe’s wife would sign said notes; which testimony the court refused to allow to go to the jury.” It is insisted that this ruling was error on the ground that under the pleadings said evidence was material, relevant, and admissible, and that the ruling rejecting the evidence was contrary to law. Under the authorities cited in the next preceding headnote this exception is incomplete and presents no question for decision. It does not appear from the record before us that the trial court was informed what facts the witness would state, nor did counsel state to the court what he expected the witness to say. It is not a compliance with the rule stated above to merely state in the bill of exceptions, “During the trial of the case plaintiff in error offered Mr. Will Tidwell as a witness for the purpose of proving,” etc.

8. The evidence was without conflict, and demanded the verdict which was directed by the court. Judgment affirmed.

All the Justices concur. Hall & J ones and J. P. Atkinson, for plaintiff in error. Camp & Parker and N. P. Culpepper, contra.