Simpson v. Pethel

61 S.E.2d 154, 82 Ga. App. 374, 1950 Ga. App. LEXIS 1113

Opinion

Worrile, J.

1. In an action by the payee against the surviving partner of the maker, on a check drawn against partnership funds, the failure to allege presentment and notice of dishonor, or facts excusing such notice, is fatal to the declaration. Gainesville News v. Harrison, 58 Ga. App. 744, 745(6) (199 S. E. 559).

2. Where the allegations of the petition as amended and the exhibit attached thereto, show that the maker of the check drawn on partner- ■ ship funds and sued on, died more than seven months after the check was drawn, but failed to allege presentment to the drawee bank and notice of dishonor, before the death of the maker or facts excusing such presentment and notice within a reasonable time after the date of the check (Code, §§ 14-710, 14-712, 14-713), and further failed to allege presentment to the personal representative of the maker after his death (§ 14-707), or to the surviving partner (§ 14-708), or to any other party liable thereon, or notice of dishonor, or facts excusing such presentment and notice, the petition was subject to general demurrer under the ruling in Gainesville News v. Harrison, supra, and the trial judge did not err in sustaining the demurrer and in dismissing the action.

Judgment affirmed.

Sutton, C.J., and Felton, J., concur.