Pullen v. Powell

Jenkins, P. J.

1. “When a negotiable paper is sued on by a holder or indorsee, received under dishonor, no set-off is allowed against the original payee, except such as is in some way connected with the debt sued on, or the transaction out of which it sprung.” Civil Code (1910), § 4344; Polk v. Stewart, 144 Ga. 337 (87 S. E. 21) ; Kinard v. Sanford, 64 Ga. 630. Accordingly, where the testimony for the defendant showed that the claim which he sought to set off against the transferee’s action upon a note given to the original payee for borrowed money consisted of a demand against the original payee for services subsequently rendered under an independent contract, in no way connected with the transaction in which the note was given, the court erred in directing a verdict for the defendant.

2. While it is true that “if the plaintiff sues for the benefit of another person, a set-off against the beneficiary shall be allowed,” a verdict for the defendant in the instant case could not be directed on this principle of law, since the evidence for the defendant, when taken by itself, did not conclusively show that the plaintiff was not the owner of the note assigned to him, and the plaintiff on his part testified that he in fact became by purchase the holder and owner of the note sued on.

Judgment reversed.

Stephens and Bell, JJ., concur. A.'L. Miller, for plaintiff. E. L. Smith, for defendant.