Doepke v. Cocke

163 S.E. 310, 45 Ga. App. 65

Opinion

Stephens, J.

1. An instrument containing terms of negotiability, such as a note payable to the payee, or his order, does not lose its character of negotiability by becoming overdue. Therefore the transferee of a negotiable instrument who acquires it after it has become overdue is not required to give notice to its maker as to its transfer or assignment, in order to establish his title thereto as against subsequently accruing equities between the transferor and the maker. The provisions of see tion 3653 of the Civil Code of 1910, which provide that an assignment of a chose in action vests title in the assignee subject to existing equities between the assignor and the debtor at the time of the assignment and “until notice of the assignment is given to the person liable,” by the express terms of this code section do not apply to negotiable instruments. Georgia State Banking Co. v. Harden, 32 Ga. App. 300 (124 S. E. 68) ; Tuck v. National Bank of Athens, 108 Ga. 446 (33 S. E. 983, 75 Am. St. R. 69).

Decided February 24, 1932. B. B. Marlin, H. A. Wilkinson, for plaintiff in error. W. Ii. Gurr, contra.

2. In a suit upon a negotiable instrument by the transferee against the makers, where the defendants bj' plea deny that the plaintiff became the purchaser of the instrument before its maturity, and pleaded payment made after the maturity of the instrument to the payee thereof, who was at the time in possession of the instrument, where the evidence presented an issue of fact whether the plaintiff was a holder of the instrument in due course, and it appeared from undisputed evidence that if the defendants made the alleged payment, it was made after the maturity of the instrument and to the payee thereof; and although there may have been evidence to authorize the inference that the defendants may have on other occasions made payments upon the instrument to the payee while in the latter’s possession after its maturity, and that these payments reached the plaintiff, it was error for the court to instruct the jury that if the plaintiff acquired the instrument after maturity, it was the duty of the plaintiff to notify the defendants that the plaintiff was the holder of the instrument.

3. The alleged errors complained of elsewhere in the motion for a new trial are not likely to occur upon another trial.

4. A verdict having been found for the defendants, the court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.