Kinard v. First National Bank , 125 Ga. 228 ( 1906 )

Cobb, P. J.

(After stating the foregoing facts.) “Drafts are not payment until they themselves are paid, there being no evidence that they were taken expressly in payment.” Stewart Paper Co. v. Rau, 92 Ga. 512 (2). “A bill, acceptance, of promissory note, either of the debtor or of a third person, is no payment or extinguishment of the original demand, unless it is expressly agreed to receive it in payment.” Weaver v. Nixon, 69 Ga. 699; Rawlings v. Robson, 70 Ga. 595 (2); Hall’s Cotton Gin Co. v. Black, 71 Ga. 456; Freeman v. Exchange Bank, 87 Ga. 46; Hatcher v. Comer, 75 Ga. 732; Norton v. Paragon Oil Can Co., 98 Ga. 470. The marking of the note “paid,” by the payee, is not alone sufficient to take the transaction out of the rule above laid down. Weaver v. Nixon, 69 Ga. 699; Charleston Ry. Co. v. Pope, 122 Ga. 580.

Whether the acceptance by the bank of the draft and the cancellation and delivering up of the note and mortgage was an ex-tinguishment of the debt depended upon the intention of the parties. Norton v. Paragon Oil Can Co., supra. The intention is to be arrived at from all the circumstances. We see nothing in the evidence to take the ease out of the general rule that cheeks and similar instruments are not payment until themselves paid. The check given to discharge the note was not payment until it was paid, and it could not be paid unless the draft was paid. The payment of the check was dependent upon the payment of the draft. It is manifest from the evidence that neither party intended that either the check or the draft was in itself payment of the original demand. The evidence shows that it was the intention of Kinard that $146 should be applied pro tanto in' payment of the check for $200. The bank was entitled to foreclose its mortgage. The judge did not err in refusing to sanction the petition for certiorari.

Judgment affirmed.

All the Justices concur.