Opinion
53015.
SUBMITTED NOVEMBER 2, 1976.
DECIDED JANUARY 6, 1977. REHEARING DENIED JANUARY 26, 1977.
Action on note. Emanuel Superior Court. Before Judge McMillan.
Spivey Carlton, Charles B. Merrill, Jr., for appellants.
Shepherd, Gary McWhorter, William H. McWhorter, Jr., John R. Thompson, for appellee.
The maker and two endorsers of a promissory note appeal from the judgment rendered against them in a suit on the note brought by the payee bank.
1. Defendants urge that the court erred in failing to strike from the jury panel members who were savings account depositors of the plaintiff bank. Assuming, however, for the purpose of argument that these jurors were disqualified, it has not been made to appear that defendants were harmed by exhaustion of their peremptory strikes, and no cause for reversal is shown. Robinson v. Murray, 198 Ga. 690 (1) ( 32 S.E.2d 496) (1944); Geiger v. State, 129 Ga. App. 488, 494 (2a) ( 199 S.E.2d 861) (1973).
2. Several enumerations urging failure of consideration and violation of the parol evidence rule center around the fact that the proceeds of the note were not deposited in defendants' accounts but were deposited in the account of a third party at defendants' direction. These enumerations are without merit. "`A contract may be supported by adequate consideration as against a promisor under it who never receives any part of the consideration. This is hornbook law — the most elementary.'" First Jewelers, Inc. v. Rosen, 119 Ga. App. 355, 356 ( 166 S.E.2d 919) (1969). Accord, Edgar v. Edgar Casket Co., 125 Ga. App. 389 ( 187 S.E.2d 925) (1972). The same result obtains on a defense of discharge by payment where the debtor makes payment to a third person at the request or with the consent of the creditor. Marks v. Durrett, 127 Ga. App. 537 ( 194 S.E.2d 351) (1972).
3. The jury returned its verdict in favor of the endorser who was a resident of the county but against the nonresident endorsers who had been sued under the Long Arm Statute, Code Ann. § 24-113.1. While it is true, as the plaintiff contends, that two or more endorsers are jointly and severally liable and an action may be maintained against less than all (Code Ann. § 109A-3-118 (e); Simpson v. Wages, 119 Ga. App. 324 ( 167 S.E.2d 213) (1969)) nevertheless if all are sued and the case proceeds to verdict, the verdict must not be contradictory and repugnant. "A verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside." Fleming v. Collins, 190 Ga. 210, 214 ( 9 S.E.2d 157) (1940). Accord, Thompson v. Ingram, 226 Ga. 668 (2) ( 177 S.E.2d 61) (1970). "Under our practice, a verdict of a jury which is illegal and void, and cannot be enforced, is a ground for granting a new trial." Darien Western R. Co. v. McKay, 132 Ga. 672 ( 64 S.E. 785) (1908). Accord, Pickron v. Garrett, 73 Ga. App. 61 (3) ( 35 S.E.2d 540) (1946).
Appellants contend that there is no basis in the record to support a distinction in liability as between the endorsers, all of whom are asserted to be in the same boat. Plaintiff has failed to respond by showing any distinction that would support the verdict, and the appellants' claim will be upheld. Rule 18 (c) (3) (iv), this court (Code Ann. § 24-3618 (c) (3) (iv); Allen Housemovers, Inc. v. Allen, 135 Ga. App. 837, 839 (3) ( 219 S.E.2d 489) (1975); Ga. Stainless Steel Corp. v. Bacon, 120 Ga. App. 239 ( 170 S.E.2d 270) (1969).
Since it cannot be determined whether any part of the verdict with respect to the endorsers is valid, as to them it must be held void for inconsistency and a new trial ordered as to all endorsers. Compare Roswell Rd. Perimeter Hwy. Liquor Store v. Schurke, 138 Ga. App. 502 ( 227 S.E.2d 282) (1976). The verdict against the maker does not share this infirmity and may be retained (Code § 110-112), and the judgment against it is affirmed.
Judgment affirmed in part and reversed in part. Deen, P. J., and Smith, J., concur.