Opinion
58406.
ARGUED SEPTEMBER 25, 1979.
DECIDED FEBRUARY 13, 1980. REHEARING DENIED MARCH 13, 1980.
Default on promissory note. Fulton State Court. Before Judge Camp.
Fred A. Gilbert, Taylor W. Jones, Michael R. Uth, for appellants.
John F. Doran, Jr., Roger W. Moister, Jr., for appellees.
Matthew H. Patton, Alfred S. Lurey, amicus curiae.
This is a suit upon a promissory note assigned by the payee, Bentley, to the appellee bank. Appellants, makers of the note, contend that it was error for the trial court to grant summary judgment to the bank because there was a genuine issue as to whether the bank was a holder in due course so as to take the instrument free of defenses which Bentley might have. We agree.
The promissory note in issue states on its face that it is "non-negotiable." We considered an identical note in Henry v. Cobb Bank c. Co., 151 Ga. App. 725 (1979), which is controlling here. In that case we held such a note to be non-negotiable and therefore, Code Ann. Ch. 109A-3 is not applicable. This court held further that the trial court improperly granted plaintiff's motion for summary judgment (on the erroneous assumption plaintiff was a holder in due course), since there is a genuine issue of material fact as to the parties' intentions in making the note and the purpose for which it was delivered, as well as an issue of fact as to defendant's allegations of setoff. As this court's holding in Henry, supra, is applicable to the instant case, the judgment of the trial court granting summary judgment to appellee must be reversed.
Judgment reversed. McMurray, P. J., and Banke, J., concur.