Carter v. Owenby , 39 Ga. App. 402 ( 1929 )

Luke, J.

J. H. Owenby sued J. R. White, Hix Carter, and Mrs. M. J. Carter on a promissory note, in a justice’s court, and obtained a judgment in his favor. On appeal a jury in the superior court also found for the plaintiff. Mrs. Carter’s plea was that she was not liable, because the note was given for a debt of her husband, Hix Carter, and that she was security for him on the note; and this is the only issue presented by the record.

J. H. Owenby testified as follows: “I sold Hix Carter a horse, and he give me the note for him. We traded at my house, and when he signed the note and got White to sign it and presented it to me I told him that I would not take the note without Mrs. M. J. Carter signing the note, and then he went off, and when he came back the next day the note was signed by his wife, Mrs. M. J. Carter. I let him -have the horse then. I would not let him have the horse when he first brought the note. . . Mrs. Carter was not present when the note was made. I never said anything about the trade to her. I delivered the horse to Iiix Carter. I did not see Mrs. Carter sign the note, and I could not say whether she signed it as principal or security. I was not present when she signed it. I stated to Hix Carter at the time the trade was made that I'would not let him have the horse unless his wife signed the note with him.” Hix Carter testified that he told the plaintiff that he heard he had a horse for sale, and that he had come over to see about buying it; that the plaintiff would not take the note signed by the witness and White, and that the witness got his wife to sign it. We quote from this witness’s testimony the following: “She asked me not to buy the horse, and stated that she did not like to go my security to buy an old horse. I finally persuaded her to sign the note as security. She was not present when the trade was made, and had nothing to do with it at all.” Mrs. M. J. Carter swore unequivocally that she signed the note as security for her husband, Hix Carter; and Hix Carter’s testimony was to the same effect. The testimony of the plaintiff never refuted, but strongly supported that of Mr. and Mrs. Carter. Under this state of facts, we think the trial judge erred in refusing to set aside the verdict, and that his judgment overruling the motion for a new trial should be reversed. See Civil Code (1910), § 3007; Jones v. Weichselbaum, 115 Ga. 369 (41 S. E. 615).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.