Howard v. Caldwell

133 S.E. 284, 35 Ga. App. 366, 1926 Ga. App. LEXIS 356

• Court: Court of Appeals of Georgia
• Decided: May 12, 1926
• Docket: 17181
• Status: Published

Opinion

Broyles, C. J.

1. In a suit upon a promissory note by a bona fide holder , for value thereof, who 1'eeeived it before it-was due and without notice of any defect or defense, the only permissible defenses by the maker of the note are non est factum; gambling, or immoral and illegal consideration; and fraud in its procurement. Civil Code (1910), § 4286. And “fraud in its procurement” means fraud on the part of the holder of the note in coming into its possession, and not fraud on the part of the payee in procuring its execution. Stubbs v. Fourth National Bank, 12 Ga. App. 539 (4) (77 S. E. 893.), and cit.

Decided May 12, 1926. Bay & Bay, for plaintiff in error. Union S. James, contra.

2. Under the above-stated ruling and the facts of the instant case, the controlling questions upon the trial were whether the plaintiff was a bona fide holder for value of the note sued upon, and whether she received it without notice of any defect or defense. As to these questions there was an acute conflict in the evidence, but the jury, as was their right, decided them in favor of the plaintiff, and their verdict has been approved by the trial judge. None of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloochoorth, JJ., eoneur.