Rabun v. Commercial National Bank , 21 Ga. App. 43 ( 1917 )

Jenkins, J.

1. A promissory note payable to the order of the maker and properly indorsed by him is a negotiable instrument, and the holder is presumed to be such bona fide and for value. Civil Code (1910), § 4288; Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312); Wade v. Elliott, 11 Ga. App. 646 (75 S. E. 989); Rhodes v. Beall, 73 Ga. 641; Paris v. Moe, 60 Ga. 91; Bennett v. Gilmer, 15 Ga. App. 650 (84 S. E. 151). This presumption in favor of the holder of such an instrument is not overcome by proof made of the declarations of the payee thereof, whether made before or after its maturity, where, on the trial of an action brought by the holder, such declarations are admitted, even without objection, for the purpose of showing that the plaintiff had not in fact become the bona fide holder, for value, of the note before its maturity; it not further appearing that such declarations were made to the plaintiff, or that the latter had any knowledge thereof before acquiring title to the note. Harris v. Bank of Little Rock, 107 Ga. 407 (1), 409 (33 S. E. 404). Such testimony,, even though admitted without ohjeetion, is merely hearsay, and without probative value. Buttles v. Sewell, 117 Ga. 214, 216 (43 S. E. 486); Eastlick v. Southern Railway Co., 116 Ga. 48 (42 S. E. 499) ; Kemp v. Central of Georgia Railway Co., 122 Ga. 559 (2) (50 S. E. 465).

2. Under the foregoing rulings, there is no merit in the grounds of the motion for a new trial, except the one pertaining to attorney’s fees being allowed. Since the answer denied the allegation that notice for attorney’s fees was given, and no proof of the giving of such notice was made, it was error to direct a verdict including such fees. Cowart v. Bush, 142 Ga. 48 (82 S. E. 441); Turner v. Bank of Maysville, 13 Ga. App. 547 (79 S. E. 180). It is therefore ordered that the judgment of the court below be affirmed, with direction that the attorney’s fees included in the judgment be written off.

Decided September 19, 1917.

Complaint; from Calhoun superior court — Judge Cox. December 30, 1917.

B. W. F orison, for'plaintiff in error. Pope & Bennet, contra.

Judgment affirmed, with direction.

Broyles, P. J., and Bloodworth, J., concur.