Lee v. Exchange National Bank , 31 Ga. App. 470 ( 1923 )

Bell, J.

1. Where the maker of a promissory note asserts, in defense to an action thereon, that he entrusted it to a third person to be delivered to the payee or plaintiff only upon the happening of a certain event, such defense is not sustained unless the defendant shows, among other things, that the event did not happen before the delivery of the note. He should, show not merely that the condition existed, but that it was violated. Automobile Battery Co. v. Geraghty, 30 Ga. App. 446 (7) (118 S. E. 412).

Decided December 10, 1923.

2. The defense that the note sued on was a nude pact was in violation of the parol-evidence rule, the defendant having solemnly asserted in effect in the writing that he was the owner of the shares of stock therein described for which the note was given. It being alleged in the plea that the note was given for certain stock in the corporation, and there being no attack on the validity oí the stock, and the stipulation in the note precluding a denial that it was received by the maker of the note, allegations that the stock was worthless would not amount to an allegation that the note was nudum pactum. Carter v. Haralson, 146 Ga. 282 (1) (91 S. E. 88).

3. The consideration of the note was stock in the Citizens Bank of Ocilla, although the note was payable to the Exchange National Bank of Eitzgerald. “If there be a valid consideration for the promise it matters not from whom it is moved. The promisee may sustain his action though a stranger to the consideration.” Civil Code (1910), § 4249.

4. Applying the above rulings to the facts of the case, the court did not err in directing a verdict in favor of the plaintiff, nor in thereafter overruling the defendant’s motion for a new trial.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur. Rogers & Rogers, for plaintiff in error. A. J. & J. G. McDonald, contra.