Opinion
37733.
DECIDED JUNE 11, 1959.
Action on check. Fulton Civil Court — Appellate Division. April 7, 1959.
M. L. Kahn, for plaintiff in error.
Abraham J. Wolcott, contra.
1. In an action by the payee named in a negotiable instrument against the maker, nothing further appearing, an answer alleging a failure of consideration is not subject to demurrer.
2. Where a defendant has complied with the demands of a plaintiff after an action has been instituted against him the costs of court should be assessed against the defendant; however, such question cannot be raised by a motion for new trial but should be raised by a timely motion to retax the costs, since the judgment of costs is not part of the verdict but a duty of the court.
3. Where the undisputed evidence in an action upon a check discloses that the plaintiff has been paid for the check before the trial of the case a finding is demanded for the defendant and errors, if any, in the admission or rejection of evidence dealing with the circumstances under which the check was issued are harmless.
DECIDED JUNE 11, 1959.
On July 31, 1958, Thelma Klarman issued a signed blank check which was later filled in so as to be payable to Markan Realty Company in the amount of $125, but before such check was paid, Thelma Klarman instructed the bank not to pay such check, hence the present action by Markan Realty Company v. Thelma Klarman. The petition did not show that the check was filled in by someone other than the defendant and the action was based on the check issued by the defendant and made payable to the plaintiff. On the trial of the case in the Civil Court of Fulton County the trial court, hearing the case without the intervention of a jury, rendered judgment for the defendant with costs upon the plaintiff. The plaintiff's oral motion for new trial was denied and on appeal to the appellate division of that court such judgment was affirmed as was the judgment of the trial court overruling the plaintiff's demurrer to the defendant's answer. The plaintiff now excepts to the judgment of the Appellate Division of the Civil Court of Fulton County adverse to it.
1. The defendant's answer, among other things, alleged a failure of consideration and denied that she was indebted to the plaintiff as of the date the check was issued.
The check sued on was made payable to the plaintiff, and under the decisions of this court in the cases of Davis v. National City Bank of Rome, 46 Ga. App. 194 (1) ( 167 S.E. 191), and Pendley v. Credit Equipment Corp., 92 Ga. App. 658 ( 89 S.E.2d 567), the payee cannot be a holder in due course of a negotiable instrument so as to preclude a defense of failure of consideration unless the instrument on which the action is based is a renewal instrument of a negotiable instrument held by such payee as a holder in due course. See 8 Am. Jur. 96, Bills and Notes, § 358, and Credit Equipment Corp. v. Pendley, 97 Ga. App. 868, 872 ( 104 S.E.2d 718).
Here the plaintiff was named as payee in the instrument and without more being shown was not a holder in due course so as to preclude the defendant from pleading a failure of consideration. Accordingly, the trial court did not err in overruling the demurrer to the answer.
2. It is well settled that where a defendant pays a plaintiff the amount claimed to be due in a petition after the action is filed against him, or performs in accordance with the prayers of a petition for a writ of mandamus (See Board of Education of Madison County v. Fowler, 192 Ga. 35, 14 S.E.2d 478), the court costs, as a matter of law, in the absence of an agreement between the parties, should be assessed against the defendant, but where no effort has been made by the plaintiff, in a case where the trial court orders such costs to be paid by the plaintiff, to have the costs retaxed, no question for decision is presented to the appellate courts (See Carmichael Tile Co. v. McClelland, 213 Ga. 656 (1) ( 100 S.E.2d 902), and a motion for new trial would not raise such question. "The assessment of costs constitutes no part of a verdict, but is one of the duties of the court. Southern Express Co. v. Maddox, 3 Ga. App. 223, 225 ( 59 S.E. 821); Swope v. McKenney, 36 Ga. App. 168 ( 136 S.E. 89)." Equitable Credit Corp. v. State of Ga. 85 Ga. App. 552 (2) ( 70 S.E.2d 46). In that case, as in the present case, the court heard the case without the intervention of a jury. Accordingly where, as here, no motion to retax the costs was made and the plaintiff merely argues that its motion for new trial should be granted because the court costs were illegally taxed, no question for decision is presented by such contention.
3. The record shows without dispute that the plaintiff had been paid for the check on which the action was based before the trial of the case so that the question presented by the plaintiff's motion for new trial is moot, and the exclusion of evidence as to the circumstances surrounding the issuance of such check by the defendant, if error, was harmless. See Equitable Credit Corp. v. Guy Rush Paint c. Co., 86 Ga. App. 352 ( 71 S.E.2d 527).
Judgment affirmed. Felton, C. J., and Quillian, J., concur.