Farmers & Merchants Bank v. Rogers

189 S.E. 274, 55 Ga. App. 38, 1936 Ga. App. LEXIS 423

• Court: Court of Appeals of Georgia
• Decided: November 18, 1936
• Docket: 25738
• Status: Published

Opinions

Jenkins, P. J.

1. “Although, under our statute and the general rule, ‘bank cheeks and promissory notes are not payment until themselves paid’ (Code, § 20-1004), they nevertheless constitute payment if the creditor has agreed to accept or has received them as such.” Nash Motors Co. v. Harrison Co., 52 Ga. App. 333, 335 (183 S. E. 202), and cit. Where, after the execution of a promissory note, a renewal or new note is executed for the same debt, it is the general rule that the second instrument does not of itself operate as a payment, or accord and satisfaction, or novation extinguishing the first note, unless there is an agreement between the parties to that effect. Foy-Adams Co. v. Smith, 19 Ga. App. 172 (91 S. E. 242), and cit.; Harrell v. First National Bank, 21 Ga. App. 159, 160 (93 S. E. 1018); Georgia National Bank v. Fry, 32 Ga. App. 695 (124 S. E. 542); 8 C. J. 569-571; 46 C. J. 589-591. The existence of such an agreement in connection with the execution of the second note may be shown by parol evidence. Fisher v. Jones Co., 93 Ga. 717 (21 S. E. 152); Kennedy v. Walker, 156 Ga. 711 (2) (120 S. E. 105); Brantley Co. v. Lee, 106 Ga. 313, 316 (32 S. E. 101); Butts v. Maryland Casualty Co., 52 Ga. App. 838 (84 S. E. 774).

2. In this suit by a payee bank against a maker on an unsecured promissory note, the evidence did not demand a verdict in favor of the bank against the defendant’s plea that the original note sued on was satisfied by the substitution of a subsequently signed mortgage note. Therefore, the verdict directed in favor of the plaintiff bank not being demanded, the court did not err in granting a first new trial on motion of the defendant. Judgment affirmed.

Stephens and Sutton, JJ., concur. Homer Beeland, Jule Felton, Jule W. Felton, Bern S. Beeland, for plaintiff. B. L. LaSueur, for defendant.