Loudermilk v. Loudermilk

25 S.E. 927, 98 Ga. 780

• Court: Supreme Court of Georgia
• Decided: August 18, 1896
• Status: Published

Opinion

Lumpkin, Justice.

Tbe facts appear-in tbe official report.

This case was before this court at tbe October term, 1893. 93 Ga. 443. It now presents a question entirely different from tbat with which tbe court then dealt. At tbe last trial, tbe defense of tbe indorser, under tbe rule announced in 93d Ga., was conceded. The maker filed another special plea, which tbe court, on demurrer, ordered to be stricken. In our judgment this plea set forth a good defense against tbe plaintiff’s right to recover tbe interest which bad apparently accrued upon tbe note before it came into bis possession. Tbe law of tbe case is really settled by section 3122 of tbe code, which is simply a codification of a well recognized principle of equity jurisprudence. It declares tbat “an honest mistake of the law as to tbe effect of an instrument on tbe part of both contracting parties, when such mistake operates as a gross injustice to one, and gives an unconseientious advantage to the other, may be relieved in equity.” The facts alleged in the plea now under review bring the case squarely within the provisions of this section; for it is obvious that the plaintiff, who took the note as a donation and with full knowledge of all the facts, occupies no better footing, as against the maker, than the original payee. Had he been a l)ona -fide purchaser for value and without notice, of course the question would be entirely different. Judgment reversed.