Harper v. Calhoun National Bank

158 S.E. 767, 43 Ga. App. 364, 1931 Ga. App. LEXIS 364

Opinion

Jenkins, P. J.

1. Where suit is brought in the name of the payee in a promissory note for the use of another, and the usee, before the commencement of the action, has acquired the legal title by indorsement, the petition is amendable by striking the name of the original plaintiff and allowing the action to proceed in the name of the usee. Woodbridge v. Drought, 118 Ga. 671 (2) (45 S. E. 266).

Decided May 15, 1931. J. PL. Paschall, for plaintiff in error. J. Q. B. Erwin, contra.

2. Generally, the holder of a promissory note, pledged to him as collateral, may enforce it for the entire amount against the maker as obligor; but if the maker has a valid defense against the original payee, the holder can not recover more than the amount of the debt due him by the payee. Slack v. Elkins, 10 Ga. App. 571 (73 S. E. 862). However, the mere fact that the payee of the note may have pledged it to the plaintiff to secure a debt less in amount than the amount of the note constitutes no defense to a suit by the holder against the maker. Accordingly, in the instant case the answer of the defendant, which contained a general denial of . the averments of the petition and further alleged that the note sued on had been pledged to the plaintiff as collateral security for a debt less in amount than the note sued on, but which set forth no defense that would have been available even as against the original payee, was properly stricken on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.