Freezamatic Corp. v. Brigadier Industries Corp.

189 S.E.2d 108, 125 Ga. App. 767, 10 U.C.C. Rep. Serv. (West) 1185, 1972 Ga. App. LEXIS 1466

• Court: Court of Appeals of Georgia
• Decided: February 29, 1972
• Docket: 46845
• Status: Published

Opinions

Jordan, Presiding Judge.

This is an action on two promissory notes against the maker and the endorsers. The defendant’s answer admitted execution of the notes but denied the indebtedness because the notes were "part of a series of actions dealing with stock of the two companies, stock options and other matters.”

Such a pleading is not a defense to this action. Code Ann. § 109A-3 — 307 (2) clearly states, "When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” Code Ann. §81A-108 (c) states that "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver.” In Crosby v. Jordan, 123 Ga. App. 83 (2) (179 SE2d 537), we said, "With the admission by the defendant of his execution of the note to the plaintiff, the plaintiff had a prima facie right to the judgment sought and the defendant then had the burden of establishing any claimed defense to the action. Code Ann. § 109A-3 — 307 (2, 3). As between the immediate parties to a note, it may be shown that its terms were modified . or affected by other written agreement executed as a part of the same transaction. Code Ann. § 109A-3 — 119. The defendant offered no such written agreements.”

Under the statutory and case law cited above and the facts existing here, the defendants were required to plead and establish an affirmative defense to the notes admittedly executed. This they failed to do, and the plaintiff was entitled to a judgment on the pleadings at this stage.

The dissenting opinion puts the burden of establishing the defendant’s defense on the plaintiff. The law places that burden on the defendant. The rules relied on in the dissenting opinion, i.e., construing an answer most favorably to the defendant as against a motion to dismiss for failure to state a claim, come into play in this situation only after the defendant has met his burden of setting up or pleading an affirmative defense.

Cases such as Kramer v. Johnson, 121 Ga. App. 848 (176 SE2d 108), relied on by the appellant, where the defense "raised 'the issue of signature” are not applicable here. No issue of execution or signatures is raised by the defendants’ answer but indeed the signatures are admitted.

The trial court was correct in granting plaintiff’s motion.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, Quillian, Evans and Clark, JJ., concur. Pannell and Deen, JJ., dissent.