Since there was a genuine issue of material fact, which had to be submitted to the jury, the granting of the plaintiff's motion for summary judgment was error.

DECIDED APRIL 11, 1962 — JUDGMENT ADHERED TO JULY 5, 1962.

The Fulton National Bank of Atlanta filed its petition in the civil division of the Civil and Criminal Court of DeKalb County against One in All Corporation to recover the balance allegedly due on two promissory notes and a bill of sale to secure debt. The petition alleged that the notes were given by the defendant corporation to Ryals Insurance Agency, Inc., which thereafter and before maturity endorsed them to the plaintiff for value and that the entire balance of $2,140.89, plus interest from the maturity date of each note, became due because of the defendant's default on the payments. By amendment, the petition sought 15% attorney's fees.

The defendant filed a general demurrer and an answer to each of the three counts of the petition. The defendant's plea of payment alleged that it had tendered to the plaintiff a check marked "payment in full" for the balance due of $536.98, of which check the plaintiff had retained possession for about 39 days. The defendant's plea of failure of consideration alleged that the notes sued on in the first two counts of the petition were made payable and given to Ryals Insurance Agency by the defendant for payment in full of premiums for various insurance policies, which the agency warranted it would not cancel before their expiration date; that, notwithstanding this agreement and without defendant's knowledge or consent, the agency had these policies canceled prior to their expiration date and the maturity date of the notes; and that since the plaintiff had knowledge of these facts prior to the assignment to it of the notes, the plaintiff was not a holder in due course. The defendant filed a cross-bill seeking to recover damages from the plaintiff for filing a suit against it in bad faith and in refusing to release to defendant the automobile held by the plaintiff as security for the notes. The defendant also filed a plea of non est factum, alleging that the plaintiff had materially altered one of the notes by back dating it without the defendant's knowledge or consent.

The plaintiff filed its motion for a summary judgment, supported by affidavits of James M. McDaniel, Senior Clerk in the Installment Loan Department of the plaintiff bank, Thomas E. Joiner, the plaintiff's legal counsel, and James A. Ryals, President of Ryals Insurance Agency, Inc.

The defendant filed its motion in opposition to the plaintiff's motion, supported by affidavits of Mrs. E. W. Atkins, Secretary-Treasurer of the defendant corporation, and of Robert P. Leiter, defendant's attorney, and depositions of Messrs. McDaniel and Ryals. Mr. Leiter swore in his affidavit that the two promissory notes were in default, past due and dishonored at the time of their alleged endorsement and delivery to the plaintiff; that Ryals had told him that McDaniel didn't care to handle the defendant's notes because its credit was unsatisfactory; that McDaniel, knowing of the infirmities of the notes, agreed to hold them for collection. There further appears in the affidavit of Mr. Leiter the statement that the payee of the notes in Leiter's presence and hearing "asked Mr. James M. McDaniel, and heard him say to him that he was going to take the notes of the One in All Corporation and asked if Mr. James M. McDaniel would hold them for collection, and it was so agreed between Mr. James Ryals of the Ryals Insurance Agency Inc. and Mr. James M. McDaniel of the Fulton National Bank of Atlanta, and this deponent, acting for the One in All Corporation in a three-way telephone conversation." (R-56)

The defendant's opposing motion alleges the existence of four genuine issues of material fact, namely: (1) Whether or not the back dating of one of the notes by the plaintiff bank's agent was a material alteration, (2) whether the insurance agency was a comaker with the defendant below, (3) whether Ryals used the plaintiff bank as a medium for collection of his transactions with the defendant corporation, and (4) the effects of the plaintiff's filing an affidavit of foreclosure on the note and bill of sale to secure debt prior to the maturity date of the obligation. The court, after consideration of the pleadings, affidavits and depositions and following a hearing, granted the plaintiff's motion for summary judgment without ruling on the demurrers or pleas, and entered judgment for the plaintiff against the defendant for $2,140.89 principal, $133.80 interest and $255.06 attorney's fees, plus costs. The plaintiff in error excepts to this judgment on the grounds that there are genuine issues of material fact to be determined by a jury.

BELL, Judge.

Under our summary judgment statute, a summary judgment can be rendered only where there is no genuine issue as to material fact and the moving party is entitled to a judgment as a matter of law. The statute expressly provides that it shall not be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. Ga. L. 1959, p. 234 ( Code Ann. § 110-1203).

There is no issue of fact as to whether Ryals Insurance Agency was a comaker on one of the loans, because although the agency's name appeared on the plaintiff bank's ledger card in a space marked "comaker," Mr. McDaniel explained in his deposition that "it is worded as a comaker but he is an endorser." The instrument itself confirms this statement.

The attempted foreclosure on the plaintiff in error's automobile before the maturity date of the note or notes raises no issue of fact, inasmuch as the automobile was not found to be levied upon and no damage is alleged to have been incurred as a result of the attempted foreclosure.

That one of the instruments was back dated does not prevent it from being a negotiable instrument. Code § 14-212. Even the insertion of a wrong date in an instrument does not avoid it in the hands of a subsequent holder in due course. Code § 14-213. The affidavit of the agent of the maker that she did not authorize back dating of the instrument does not raise any issue as to material alteration since she signed it, so far as appears from the record, with the antecedent date inserted and by signing adopted and ratified the back dating.

The evidence offered by the bank tends to prove that it was a holder in due course, it having taken the instrument in its own behalf. However, the testimony of Leiter, which was offered as a matter within his own knowledge, gained through a three-way telephone conversation, was that the bank took the notes for collection. Leiter's testimony would authorize the jury to find that the bank was not a holder in due course of the notes, but instead held them for collection. From this testimony of Leiter in the record it appears that there was a substantial issue of material fact which the defendant had the right to have submitted to a jury. If the bank held the instrument as a holder in due course, the defense of failure of consideration could not be asserted against the bank; while if the bank held the instrument merely for collection the defense could be asserted against it. The holder in due course holds a negotiable instrument in his own right and takes title thereto. A holder for collection does not hold in his own right and is merely the agent of the true owner who has parted with possession but has retained title. Where the instrument is transferred to a bank for collection the bank does not have title. Johnson v. Peoples Bank, 36 Ga. App. 570 (3) ( 137 S.E. 104). A transfer for collection is a mere power of attorney leaving title in the transferor. Atkins Co. v. Cobb, 56 Ga. 86, 88 (2). Where the instrument is held for collection, it is subject to the same defense as if it were held by the payee. Wilson v. Tolson, 79 Ga. 137 ( 3 S.E. 900).

The other issues of material fact raised are not ruled upon since their existence will depend upon the outcome of the trial as to whether the plaintiff is a holder in due course.

Since there was at least one issue as to a material fact which the defendant had the right to have determined by the jury, the trial court erred in granting the plaintiff's motion for summary judgment.

Judgment reversed. Felton, C. J., and Hall, J., concur.