House v. Isaacson

116 S.E.2d 520, 102 Ga. App. 377, 1960 Ga. App. LEXIS 626

• Court: Court of Appeals of Georgia
• Decided: September 12, 1960
• Docket: 38420
• Status: Published

Opinion

Felton, Chief Judge.

1. As a matter of pleading it is necessary for the plaintiff in an action on a note to allege the nonpayment thereof, although it is not necessary for him to support such allegations by any proof other than that which is necessarily attendant on the introduction of the note in evidence. 8 Am. Jur. 565, Bills and Notes, § 957.

2. The fact of nonpayment will be deemed to be sufficiently pleaded if facts are stated from which the default of the defendant, and the existence of an indebtedness from him to the plaintiff, can fairly be inferred. 10 C. J. S. 1216, Bills and Notes, § 591.

3. Where, in an action on a promissory note, the petition failed to allege nonpayment of the note or any facts from which an indebtedness by the defendant to the plaintiff could reasonably be inferred, it was error to overrule the defendant’s general demurrer. The case of Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522 (124 S. E. 72) is not authority to the contrary, since the petition in that case specifically alleged demand and refusal of payment, but simply failed to allege in addition thereto that the defendant was indebted to the plaintiff on the note upon which action was brought.

Decided September 12, 1960. Arnold & Harris, Ross Arnold, Nancy Pat Phillips, Robert B. Harris, for plaintiff in error. T. M. Smith, Troutman, Sams, Schroder & Lockerman, contra.

Judgment reversed.

Nichols and Bell, JJ., concur.