Slaton v. Fowler , 124 Ga. 955 ( 1906 )

LüMPKIN, J.

Our decision in regard to some of the questions involved in this case will sufficiently appear from the headnotes. It is only necessary to add that at common law, as a general rule, a seal imported a consideration, and a contract under seal was not open to attack on the ground that it was without consideration. Whether this rule applies to a promissory note under seal so as to prevent a plea of want of consideration, or whether the seal only raises, a presumption of a consideration, which can be rebutted, has never been definitely decided in this State; but it has been held that failure of consideration could be pleaded to a note under seal. Albertson v. Holloway, 16 Ga. 377. The reasoning in that case was criticised and the general subject discussed by Mr. Justice Cobb in Swell v. Hogan, 119 Ga. 167, 169-171. It was declared in the opinion distinctly that no ruling was made as to whether want of consideration could be pleaded to a suit on a promissory note under seal; but it was said: “We rather prefer the view of the Supreme Court of South Carolina, that a seal raised a presumption of the- existence of a consideration at the time the contract was entered into, but not that it had not since failed either whqlly or in part: and that while want of consideration could not be pleaded, failure might.” See also VanDyke v. VanDyke, 123 Ga. 680. Sometimes it may appear that the practical result of defeating a recovery. on a promissory note by pleading and proving a total failure of consideration, arising out of some defect or reason existing when the note was given, is not very different from accomplishing the same end by calling it a want of consideration. But there is a technical difference between an absence or want of consideration and a failure of consideration, and in some cases the difference is substantial as well as technical. This is more manifest where the failure is only partial. 6 Am. & Eng. Enc. Law (2d ed.), 780.

Judgment affirmed.

All the Justices concur.