Gilbert v. Merritt , 58 Ga. App. 43 ( 1938 )

Sutton, J.

This was a suit by the administrator of the estate of Mrs. J. M. Gilbert, deceased, against L. D. Gilbert, on a note for the principal sum of $300, dated February 17, 1920, with a credit of $43.05 on the same. The defendant filed a plea in which he set up that “said note should bear a credit of $88.65 instead of the amount thereon.” He further alleged that said note had been materially changed since the execution thereof, in that the original amount of the note was $200 instead of $300. The note was introduced in evidence by the plaintiff, who also showed that Mrs. I. C. Gilbert (the payee of the note), and Mrs. J. M. Gilbert were one and the same person. There was no evidence whatever on the part of the defendant as to any change in the note or the claimed credit thereon. But his only witness, when the note sued on was presented to her, his sister, testified “I can’t say that that is Delbert’s [referring to the defendant] signature, but to the best of my knowledge I would say it is.” There being no evidence in support of the defendant’s plea, the court properly directed the verdict for the plaintiff.

The plaintiff in error says he should have been granted a new-trial on the ground of newly discovered evidence, this ground being that since the date of the rendition of the verdict a certain note for the principal sum of $200, dated April 20, 1921, signed by the defendant, L. D. Gilbert, and payable to Mrs. I. C. Gilbert, was found to be in the possession of I. C. Gilbert, husband of the deceased. The defendant made an affidavit that such a note had been discovered in the papers of his father, I. C. Gilbert, and that proof to substantiate this contention could be made by the evidence of I. C. Gilbert. But neither the note nor proof was submitted, on the hearing, to substantiate that ground of the motion. Furthermore, the note referred to as newly discovered evidence would not show that the defendant did not owe the $300 note sued on in the present ease. The court did not err in overruling the motion for new trial.

Judgment affirmed.

Stephens, P. J., and Felton, J., concur.