Perlinski v. Maiden Lane Diamond Jewelry Co.

Wade, C. J.

Suit was brought in the municipal court of Atlanta against Perlinski upon a promissory note signed by Bernstein and indorsed by the defendant. The defendant filed a plea in which' he admitted a prima facie case, but alleged that there was no consideration to him for his indorsement, inasmuch as, by agreement with the plaintiff, he was to be paid a consideration of ten per cent, on all merchandise sold to the maker of the note, and that he indorsed it because of this offered consideration, but the plaintiff refused and failed to pay him the ten per cent. The court struck the plea, on motion on the ground that no legal defense was set up. The defendant carried the case to the superior court by certiorari, the certiorari was overruled, and he excepted. Held: The mere fact that the ten per cent, which was to be the consideration to the defendant was never paid did not invalidate the contract and relieve him from liability thereon. Had he filed a proper plea he would have been entitled to a set-off against the plaintiff’s claim. The trial court propeidy struck the plea.

Judgment affirmed.

Jenkins and Luke, JJ., concur.