Reynolds v. Citizens Bank , 22 Ga. App. 164 ( 1918 )

Bboxles, P. J.

1. Counsel for the plaintiff hank having stated in their brief1 in this court that they admitted on the trial that the plaintiff bank was not a bona fide purchaser, without notice, before maturity, of the note sued upon, it will not be considered as an innocent purchaser of the note.

2. Before a.transaction can be held to be within an exception to a general rule or principle of law, its right to be so considered should • eleárly appear. A general rule of law is that parol evidence is inadmissible to add to, take from, or vary a written contract. Civil Code (1910), § 4268. There are various apparent exceptions to or modifications of this rule. Such an exception is discussed in Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706). That case is in many respects similar to the instant one. It was there held,'in the first headnote, that “Where a promissory note was signed and delivered by the maker to the payee’s agent, upon an express understanding and agreement that the latter was not to deliver the note to his principal except upon the happening of a certain event, but was to hold the note ‘for both parties’ until it could be ascertained whether or not this event would happen, and where in fact it did not happen at all, and the agent, in violation of the understanding and agreement above mentioned, delivered the note to his principal, sjuch delivery was not effective or binding upon the maker. . Under these circumstances, the agent was, as to the matter of delivery, the mutual agent of both the other parties.” It Will be noted from this headnote, and from the opinion (p. 380), that the material holding there was that par.ol evidence was admissible, under the facts of that case, to disprove the fact of the delivery of the note sued upon. In the instant case paragraph “B” of the defendant’s answer did not allege that the note sued upon and the contract of indorsement thereon were not actually delivered by the agent of the payee to the payee, or that such agent received-the note with the understanding that he was to hold it and not to deliver it to his principal until he had obtained the indorsement of another person upon the note. The ruling in the Hansford' c.ase will riot be extended to cover the facts of this ease. The court did not err in striking this paragraph of the answer.

j3. The contract of indorsement showed upon its face, from a fair inference, that it was executed for the express purpose of extending the time of payment of the original note so indorsed; and, although the payee may not have been bound to so extend the time of payment '(he not having signed the agreement), yet since the record and a fair inference therefrom discloses that as a matter of fact he did so extend the time of payment (suit upon the note not being brought until after the lapse of the extended time of paym'ent), there was a consideration which actually flowed to the original maker of the note by reason of such indorsement. It was immaterial that the indorsers themselves received no benefit. It follows that the court did not err in striking paragraphs “C” and “D” of the answer.

Decided April 9, 1918.

Complaint; from Colquitt superior court—Judge Thomas. ' October 2, 1917.

W. 0. Mather, Shipp & Kline, for plaintiffs in error. Parker & Gibson, contra.

4. The court did not err in striking the entire answer of the defendants, or in thereafter directing a verdict in favor of the plaintiff.

■Judgment affirmed.

Bloodioorth, J., concurs.