Turner v. Planters Chemical & Oil Co. , 1917 Ga. App. LEXIS 647 ( 1917 )

Harwell, J.

' (After stating the foregoing facts.) The last amendment offered by defendant to his plea of set-off was not marked “allowed” by the auditor. However, the auditor and both parties considered it as allowed, and evidence in its support was introduced without objection. The auditor stated in open court that the amendment was used on the hearing and treated as allowed by him, but by inadvertence he failed to sign it as allowed. .Since this amendment was treated as allowed, and was really allowed by the auditor though not so signed, and evidence was without objection introduced in support of it before the auditor, we are inclined to treat it as a part of the pleadings. It has been held that even after the report of an auditor such an amendment could he offered and allowed, in order to make the pleadings conform to the evidence heard by him. Cureton v. Cureton, 120 Ga. 559 (2) (48 S. E. 162); First State Bank v. Avera, 123 Ga. 598 (2) (51 S. E. 665). However, the evidence heard by the auditor in' support of this plea of set-off was not sufficient to sustain the plea. Even if some of the evidence tended to show that the North Georgia Fertilizer Company was indebted to Turner for fertilizer sold by it to flie Farmer’s Hnion through Turner as agent (which is not passed upon), there is no evidence to show any liability upon the part of the Planters Chemical & Oil Company for this debt.

Neither is the plea that the plaintiff as transferee took this note with notice of its payment, if in fact it had been paid, sustained by the evidence before the auditor. The note'having been indorsed to the plaintiff, the holder thereof, the law presumes that the plaintiff took it before maturity, bona fide, and without notice of its payment. Civil Code (1910), § 4288; Haug v. Riley, 101 Ga. 373 (4), 386 (29 S. E. 44, 40 L. R. A. 244); Wade v. Elliott, 11 Ga. App. 646 (2), 648 (75 S. E. 989); Oliver v. Miller, 130 Ga. 72 (60 S. E. 254); Butler v. First National Bank, 13 Ga. App. 35 (3) (78 S. E. 772). There is no evidence to rebut this presumption; and hence the Planters Chemical Company is presumed to have been an innocent purchaser of the note, before maturity, and not subject to any equities that may have existed between the North Georgia Fertilizer Company, the original payee, and Turner, the maker. For these reasons we think the evidence demanded a verdict for the plaintiff for the amount of the note, and for attorney’s fees.

As to the point, insisted on by the plaintiff in error, that the court should have submitted the matter to a jury: It appears from the record that when the auditor’s report was returned, counsel for both parties agreed in writing “that it is not necessary that said cause shall be re-referred, but that said cause shall he tried before the court” etc. The order of the judge recites that “exceptions of law in the above-stated ease coming on regularly to be heard before me, after hearing arguments and considering the pleadings, the evidence, the report, and everything filed in said case, it is ordered,” etc. No exceptions of fact were filed by either party. It would seem, therefore, that having tried the matter before the judge without objection being raised, the plaintiff waived any right of trial by a jury, if any such existed. Moreover, it has been held that when exceptions of fact are filed and the evidence demands a certain finding on one of the issues, a new trial will not be granted because the trial judge did not submit that issue to a jury. This is upon the same principle that a new trial will not be granted for erroneous rulings of the trial court where the evidence demands the verdict. Mason v. Commissioners, 104 Ga. 35 (2), 40 (30 S. E. 513). There being no issue of fact, and a , finding against the defendant being demanded by the evidence, the court did not err, under the particular facts of this case, in entering up final judgment against the defendant for the principal of the note, and for interest and attorney’s fees.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.