Beall v. Leverett

32 Ga. 105

• Court: Supreme Court of Georgia
• Decided: January 15, 1861
• Status: Published

Opinion

By the Court.

Lyon, J.,

delivering the opinion.

, The only question made in this case is, whether the verdict is contrary to law and the evidence.

Counsel for plaintiff in error insists that it is:

1. Because there is no evidence but that the plaintiff, or those under whom ho holds, was a bona fide holder of the note without notice of the want of consideration set up by defendant.

This position assumes that the onus lies on the defendant to show that the plaintiff took the note after its maturity. Ordinarily, that is when the note has some time to run from execution to maturity, this is true; but we do not think that principle applies to notes like this, due one day after its date; for the time run is so short that it is not probable that it should be put into circulation before maturity, at least not sufficiently so to raise such a presumption in favor of the holder. Notes given due and payable at the time of their execution, or at one day after date, do not belong to that class of paper intended for negotiation and circulation for commercial purposes, in which all the presumptions are in favor of the holder, in order to protect innocent purchasers, and to encourage and foster their circulation; but they are given more as an evidence of indebtedness by the maker to the payee. In all such paper there is no intention by the makei’, or expectation on the part of the payee or holder, that the note will be paid on the next day when it becomes due and payable. We cannot, therefore, hold that the verdict was contrary to the evidence in this particular. If the plaintiff had shown affirmatively that the note had passed bona fide from the payee before it was actually due, and without any notice of the defence, or the purpose for which the note was given, we are inclined to think, though not positive even as to that, that he would have been protected from this defence.

2. Because there is no evidence but that the payee, Jernigan, fully performed his part of the contract, or offered to do so, and that, therefore, the verdict was against law and the evidence.

To dispose of this position, it is necessary to advert to the facts. Jernigan, the payee, residing in the State of Alabama at the date of the note, professed to be able to cure John R. Leverett, the maker of the note, and the defendant’s intestate, of a cancer, with which he was afflicted at that time—at least, he offered to do so—and agreed to board the intestate and furnish medicines for that purpose, whilst he was treating the disease; and in consideration of this promise and agreement on the.part of Jernigan, the intestate promised to pay Jernigan the sum of $200, which was to be paid certainly, whether a cure was effected or not, and the additional sum of $200, in case a cure was effected; besides this, Leverett was to pay for his board and the medicines furnished, and Jernigan was to attend to Leverett as long as he lived, for the $200. ■

It is not doubted but that the note was given upon this consideration; it was gjven at the time the contract was made, in December, 1848; there were no other dealings between the parties. If the fact that this contract formed the consideration of the note had been denied, the jury would have been fully authorized, from the facts, in the absence of all other proof, to have so found. But was the note given in liquidation of the sum to be paid certainly, or for that dependant on acure? The only evidence upon the subject, is the declarations of the maker, as testified to by Elias Beall, and that went to the jury as evidence, that he, Leverett, had been to Jernigan to be cured of a cancer ; that he had given said Jernigan his note for $200; that he had paid him some money, and was to pay him more provided he cured him of the cancer. A fair interpretation of this statement is, that although he, Leverett, had given to Jernigan his note far $200, on account of this contract, yet he was not to pay him any more money on that account, unless Jernigan succeeded in curing him of the cancer. Considering this as a fact, and the jury had a right to so consider, if they so believed, this nóte was not given for the sum certain, but the sum conditional, and, in that view, the verdict was not only not against, but with the evidence, as no cure was ever made by Jernigan of the cancer.

We frankly admit that the evidence is not very satisfactory, but we cannot say that the verdict is so much against the, evidence as to require us to interfere with the discretion of the Court below in refusing a new trial; and, as this is the only question in the case, the judgment of the Court below must be affirmed.

Judgment affirmed.