Kaplan v. McLarty , 1937 Ga. App. LEXIS 200 ( 1937 )

Sutton, J.

Where on the trial of a ease in the municipal court of Atlanta it was shown that a surviving member of a law partnership held the full legal .title to a series of promissory notes which had been executed and delivered to his partner, deceased at the time of the trial, in consideration of certain services to be performed by him, the surviving partner having purchased from the executrix of the deceased partner’s estate his interest in the partnership assets, including the notes, and where it was further shown that there was a dispute between the makers of the notes and the plaintiff as to whether there had been a partial failure of consideration, and in consideration of the surrender of the old notes by the plaintiff a new note in a less amount was given to liim in exchange therefor, and suit was brought on the note on default in payment at maturity, a plea to the jurisdiction being sustained as to one of the -makers, and the other maker admitting that he executed and delivered the new note on the advice of his son and because he feared that he might be sued on the old series of notes in a greater amount, contending only that the consideration of the new note had failed because the holder had not performed any services for him and that part of the consideration for the old series of notes had failed, but not testifying that the plaintiff, the holder of the new note, in acquiring it, had. promised to perform any of the services which the maker claimed had not been performed by the original holder of the old series of notes, the plaintiff testifying that all agreed services had in fact been performed by the original payee: Held, that the surrender of the old series of notes was a sufficient consideration for the new note, and the judge, before whom the case was tried without a jury, was authorized to render judgment for the plaintiff. Accordingly, the appellate division of the municipal court did not err in affirming the judgment of the trial judge in overruling a motion for new trial. Judgment affirmed.

Decided November 5, 1937. W. R. Hewlett, Louis 8. Cohen, for plaintiff in error. Robert P. McLarty, Walter G. Cooper, contra. Stephens, P. J., and Felton, J., concur.