Opinion
40045.
DECIDED APRIL 19, 1963.
Action on note. Meriwether Superior Court. Before Judge Knight.
W. S. Allen, for plaintiff in error.
George C. Kennedy, contra.
1. "It is a good defense to an action on a negotiable promissory note under seal, in the hands of the original payee, that it was executed without any lawful consideration." Lacey v. Hutchinson, 5 Ga. App. 865 ( 64 S.E. 105); Saul v. Southern Seating c. Co., 6 Ga. App. 843, 847 ( 65 S.E. 1065); Toller v. Hewitt, 12 Ga. App. 496 ( 77 S.E. 650); Strickland v. Farmers Supply Co., 14 Ga. App. 661, 664 ( 82 S.E. 161); Seawright v. Dickson, 16 Ga. App. 436, 442 ( 85 S.E. 625); Empire Cotton Oil Co. v. Maxwell, 19 Ga. App. 493 (1) ( 91 S.E. 792).
2. The evidence authorizes a finding that the note sued upon grew out of a course of dealing extending over several years between the plaintiff, who was in the business of purchasing and selling pulpwood, and the defendant, an illiterate timber cutter; that the defendant did not knowingly sign the note in question but thought it was an assignment of a note for $800 previously executed by him, the amount of which he testified had been paid by the acts of the plaintiff in withholding an agreed sum per cord of wood cut by the defendant thereafter, and that amounts withheld by the plaintiff were sufficient to cover all indebtedness of the defendant to him. The testimony of both parties is, although confusing, unspecific, and skimpy, sufficient to uphold a verdict for the defendant based on partial payment and partial failure of consideration.
The trial judge did not abuse his discretion in overruling a motion for new trial on the general grounds only.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.