DocketNumber: 26278
Citation Numbers: 56 Ga. App. 782
Judges: Guerry, MacIntyre
Filed Date: 12/4/1937
Status: Precedential
Modified Date: 1/12/2023
Mrs. E. C. Smith as executrix of the will of her husband, W. B. Smith, sued Harry May on the following instrument: “Atlanta, Georgia, Feb. 2, 1933. Due W. B. Smith $500, balance due on sale of diamond ring. This amount bears interest from date at 6% per annum. Harry May.” This instrument was on the printed stationery of Harry May, and was typewritten, including the apparent signature of “Harry May” at the end thereof. The defenses were not indebted and non est factum. After the' introduction of evidence by both parties, the judge of thé municipal court of Atlanta rendered judgment in favor of the plaintiff for $500 principal, and $115.50 interest to date. The exception is to the judgment overruling the defendant’s motion for new trial containing the general and seven special grounds. In each of the special grounds error is assigned because the court ruled out certain evidence of Harry May upon the ground that it “was an attempt to go into a transaction between the defendant and a person now deceased in a suit brought by the representative of the deceased person.” Taking the special grounds in order, the evidence rejected was substantially as follows: (1) May never wrote the due-bill on the typewriter. (2) May never authorized any one to sign his name to promissory notes. (3) May first heard of the due-bill after the death of W. B. Smith. (4) May never authorized Joe Goldberg, his trusted employee and bookkeeper, to sign the due-bill. (5) “We have all of our transae
Under the Code, § 38-1603, par. 1, “Where any suit shall be instituted or defended by . . the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the . . deceased person as to transactions or communications with such . . deceased person, whether such transactions or communications were had by such ■. . deceased person with the party testifying or with any other person.” The inhibition applies to testimony tending either directly or indirectly to show the execution or non-execution of the due-bill. Webb v. Simmons, 3 Ga. App. 639 (60 S. E. 334), and cit.; Chambers v. Wesley, 113 Ga. 343 (38 S. E. 848); Neely v. Carter, 96 Ga. 197, 201, 202 (23 S. E. 313); Jewell v. Walker, 109 Ga. 241 (6), 246 (34 S. E. 337); Hudson v. Hudson, 98 Ga. 147 (3) (26 S. E. 482); Carroll v. Elliott, 176 Ga. 415 (136 S. E. 236). Under the foregoing authorities, the court properly rejected the evidence in question. Furthermore, it appears from the brief of evidence that Harry May testified, in effect, that he never heard of the due-bill, or saw it, until after the death of W. B. Smith, and never authorized any one to sign it for him; also that Joe Goldberg gave substantially the same evidence referred to in the fifth assignment of error.
We come next to the general grounds of the motion for new trial. Mrs. E. C. Smith, testified, in part, as follows: “Mr. Smith died October 27, 1934. This conversation was a short time before that . . Mr. Smith was taken violently ill on September the 6th, and it was after that time. He had gotten up, and we were walking in front of the Winecoff Hotel. We met Mr. May with his sister and her husband, . . and Mr. Smith said to me in Mr. May’s presence . . : 'Earl, don’t forget Harry May has not paid you that $500 he owes you for your ring;’ and Mr. May answered, smiling at me . . : 'That is just like W. B.; you can’t have five minutes social conversation without introducing business . . we will take care of that, won’t we?’
There was testimony which strongly tended to support the plea of non est factum. Without more, however, we will state that, since the credibility of witnesses and the interpretation of their testimony is for the jury or the court acting as a jury, we feel constrained to sustain the judgment of the trial court.
Judgment affirmed.