Continental Guaranty Corp. v. Smoke , 29 Ga. App. 438 ( 1923 )

Stephens, J.

1. Where a negotiable promissory note is payable in installments in certain definite amounts upon various consecutive dates, and before the payment and maturity of any of the installments the payee, without the knowledge of the maker, transfers the note to another and the maker thereafter continues to pay to the payee a number of the installments as they fall due, which the payee transmits to the transferee, who accepts the same in payment of the installments due, such a course of dealing is sufficient to authorize the inference that the transferee of the note had constituted the payee the transferee’s secret agent in dealing with the maker to collect the installments as they fell due.

2. Where the maker paid to the payee a subsequent installment due on the note in accordance with the practice above outlined and without any notice that the payee had no authority to receive such payment, the maker could in a suit by the transferee set up as a defense a payment which he made to such secret and concealed agent even though the latter had not remitted to the transferee. Civil Code (1910), § 3604; McConnell v. East Point Land Co., 100 Ga. 129 (2) (28 S. E. 80); Peel v. Shepherd, 58 Ga. 365,

Decided February 8, 1923.

Certiorari; from Chatham superior court — Judge Meldrim. February 3, 1922.

W. B. Sanderson, A. B. Borne, for plaintiff. Saussy & Saussy, for defendant.

3. In a suit by the transferee against the maker, where the evidence disclosed the above state of facts, the verdict rendered for the defendant was authorized and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.