Nelson v. Tumlin

74 Ga. 171, 1885 Ga. LEXIS 298

Opinion

Jackson, Chief Justice.

The controlling question made by this record is, whether one of two joint makers of a promissory note for borrowed, money, being partners, can pay the money due the plaintiff to the other, and discharge himself from liability thereon, the other informing him that he is agent for the payee? We think not.

1. He cannot thus prove himself to be agent. 26 Ga., 472 ; Ewell Ev. on Agency, top p. 22, note 1.

2. The fact that he had the note in possession might be evidence that he paid it, but not that he held it as the payee’s agent. The defence is that he held it as her agent, and being surety only, wanted Hudgins, the principal, to pay him, that he might pay her. Whereupon’ Hudgins pleads this as payment to the payee, which raises the issue of law, whether, both owing the money to plaintiff, can one defend by setting up that he paid it to the other for the payee, they being partners, and the money having gone into the partnership business? It will be noted that the facts show that the payee knew nothing about one being surety and the other principal, nor does the note show anything of the sort. Under the facts, as made, we think that the verdict is contrary to law and evidence, and cannot be upheld.

Besides, the testimony is not clear that Tumlin had the note in possession, even according to defendant in error’s account of it and the clerk’s, whilst the payee swears that he did not have it at all, and is confirmed by her son.

Tumlin said he must keep the note to show the payee that the calculation was right. It is Hudgins’s fault if he allowed Tumlin to keep the note when he paid the money to him for the payee, and he must suffer for his partner’s failure to pay with one partner’s money that which both owed.

In any view of the case, the verdict relieving Hudgins from the partnership debt is wrong, where he paid it to his partner. It is the same as paying it to himself. Under this view of the case, it is unnecessary to deal particularly with the errors assigned, which all gravitate to this controlling point.

See, cited by plaintiff in error, 1 Gr. Ev. Par. 38, note 1; Code, §§1904, 1915, 1918, 2165, 2166 etseq.] Brandt on Sur. and Guar., par. 17, note; 6 Ga., 44; 26 Id., 426.

Judgment reversed.