Opinion
29454.
DECIDED JULY 8, 1942.
Complaint on note; from Walton superior court — Judge Upon. October 18, 1941.
Roberts Roberts, for plaintiff in error. H. C. Cox, contra.
1. Grounds of a motion for new trial which are not insisted on are treated as abandoned.
2. Where, on the trial of a suit on a note which has been lost, and in which suit it was sought to establish a copy thereof, the plaintiff testified positively that the original note was executed in 1922 as alleged in the petition, and in support thereof introduced an original trust receipt from which it appeared that the note was executed as testified to by him, and the defendant also positively testified that he did not execute a note in 1922 but executed a note of similar import in 1920, and in support thereof introduced an entry in writing indicating the execution of the note as testified to by him, it was error for the court, after correctly instructing the jury that the plaintiff had the burden of establishing a true copy of the note sued on, to instruct the jury that the "plaintiff undertakes to do it by resorting to certain papers he has and inferences he has drawn from the course of conduct he has followed in his business and in his habits," and that "the defendant swears positively that the note he gave would be due in 1920 and not in 1922, and he gives you his explanation as to why he has such a recollection about the matter, and then he also brings to you certain documentary evidence from which he points out certain entries, and contends that from these entries inferences should be drawn by you showing he is right about it and that the lost note was due in 1920." The error consisted in the court's not referring to positive testimony of the plaintiff that the note was executed in 1922.
3. The evidence did not authorize the court to charge the jury as follows: "Where a plaintiff's right to recover depends upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied upon by the plaintiff, it was affirmatively shown that no such fact existed."
DECIDED JULY 8, 1942.
On April 29, 1941, J. F. Meador brought suit against Robin S. Nowell and alleged that the defendant was indebted to him in the sum of $231.85 principal besides interest from October 15, 1922, at 7 per cent. on a promissory note dated January 1, 1922, and due October 15, 1922, for such sum; that this note was executed by the defendant to Barrett-Medlin Company and duly transferred to the plaintiff, and that the note was due and unpaid. It was alleged that the note had been lost, but that "a substantial copy of said note" was attached to and made a part of the petition. This copy was dated January 1, 1922, and provided: "October 15, 1922, after date I promise to pay to the order of Barrett-Medlin Company $231.85, . . with interest after maturity until paid at 7 per cent. per annum." The note recited that it was executed under the hand and seal of the maker and was signed "Robin S. Nowell. (L. S.)" On the back of the note was the following: "Pay to Meador-Cauthorn Company. Barrett-Medlin Company, by C. L. Barrett Jr., vice-pres. Pay to J. F. Meador. Meador-Cauthorn Company, by J. F. Meador, pres."
The defendant denied all the allegations of the petition except as to the defendant's residence, and that the defendant had refused to pay the note on demand, which were admitted. For further plea the defendant averred that the right of action of the plaintiff on the cause of action sued on, "if any he ever had," accrued more than twelve months next before the commencement of the suit and was therefore barred by the statute of limitations; and that the note sued on was dated "the ____ day of ____ 1920, and due Oct. 15, 1920, and at the commencement of this action was more than twenty years old." The plea and answer were verified.
The case proceeded to trial. Meador testified that he was the owner of the note; that the note was lost and that a substantial copy of it was attached to the petition; that Barrett-Medlin Company was indebted to Meador-Cauthorn Company; that he was looking after collections for the latter company; that he took a note of the defendant due October 15, 1922, and that he did not take an old note from the defendant due in 1920 as collateral on the indebtedness of Barrett-Medlin Company; that he turned the Nowell note and others over to the adjustment bureau of the Atlanta Association of Credit Men; that he turned the notes over to the Barrett-Medlin Company on a trust receipt which he identified. This trust receipt was put in evidence by the plaintiff and recited that Barrett-Medlin Company had received from Meador-Cauthorn Company certain property held as collateral security which included "one plain note due October 15, 1922, for $231.85, made by Robin S. Nowell to Barrett-Medlin Company." The signature of Barrett-Medlin Company to this instrument was witnessed by a notary public.
The defendant testified that he became indebted to Barrett-Medlin Company, and in the fall of 1920 executed a note for this indebtedness; that the description of the note was $231.85 due October 15, 1920; that he never owed them any other debt, and it was all closed up by that note; that he does not know what became of it, and that the note was never presented to him for payment. H. C. Cox, attorney for the defendant, testified for the defendant that in 1923 he represented Barrett-Medlin Company; that the company was in financial difficulties and Orrin Roberts filed a petition in bankruptcy against them; that R. Y. Barrett, representing the credit association, wrote the witness on May 5, 1923, as follows: "Some time ago I gave you a list of collateral notes which were held by Mr. Barrett of the Barrett-Medlin Company under trust receipt for collection, said notes being the property of Meador-Cauthorn Company. Will you kindly advise what became of the notes which were not returned to Meador-Cauthorn Company?" That again, on May 11, 1923, R. Y. Barrett wrote to the witness as follows: "I know that you are pretty busy with your present matrimonial plans, but can you get me a return of the Meador-Cauthorn Company notes? If you can do this will certainly appreciate it as it will relieve me a good deal. Mr. Meador is calling on me for these notes practically every day;" that attached to the letter was a list of collateral notes which described them as being for collection for the account of Meador-Cauthorn Company as follows: "Notes signed Barrett-Medlin Company due June 1, 1922, $400, balance same due October 1, 1922, $600, making a total of $1004. As collateral to above: Nowell, Robin S.; October 15, 1920, $231.85. . ." The letters and receipt referred to were put in evidence by the defendant.
The jury returned a verdict for the defendant. The plaintiff's motion for new trial was overruled and he excepted.
1. The plaintiff does not insist on the general grounds of the motion.
2. Error is assigned in ground 1 of the amended motion on the following charge: "We come now to the original proposition: is this alleged copy sued upon and attached to the petition a substantial copy of the lost note, the original lost note, and there you have a controversy, and the plaintiff would have the burden of establishing it was a true copy, substantially a true copy, to your satisfaction. The plaintiff undertakes to do it by resorting to certain papers he has and inferences he has drawn from the course of conduct he has followed in his business and his habits. The defendant swears positively that the note he gave would be due in 1920 and not 1922, and he gives you his explanation as to why he has such a recollection about the matter, and then he also brings to you certain documentary evidence from which he points out certain entries, and contends that from these entries inference should be drawn by you showing he is right about it and that the lost note was due in 1920, and therefore would be barred by the statute of limitations as it was due over twenty years before this suit was brought." The plaintiff testified that the note sued on was lost. He also positively testified that to secure an indebtedness due by Barrett-Medlin Company he got a note of the defendant "due on October 15, 1922," and also a note of Mrs. Donnie Mae Cook which was due October 15, 1922. The plaintiff testified positively that the notes representing the indebtedness of Barrett-Medlin Company together with the collateral notes were turned over to that company on a trust receipt. The plaintiff introduced in evidence what purported to be the original trust receipt which was signed by Barrett-Medlin Company in the presence of a notary public. This receipt recited that Barrett-Medlin Company had received, among other notes, the collateral note payable to it and executed by Mrs. Donnie Mae Cook for $685.26, due October 15, 1922, and the note due October 15, 1922, for $231.85 made by Robin S. Nowell to it, and that each was indorsed by that company. On the other hand the defendant testified positively that he had executed only one note to Barrett-Medlin Company, and that this note was executed in 1920. The defendant likewise introduced in evidence a letter from the manager of a credit bureau to whom, the plaintiff had testified, he had at one time turned the notes over for collection, which letter contained an entry that the credit company held for collection for the account of Meador-Cauthorn Company two described notes of Barrett-Medlin Company due June 1, 1922, and October 1, 1922, respectively, together with two collateral notes. This entry described the Cook note as due or dated October 15, 1920, and the Nowell note likewise.
It is our opinion that while the court correctly instructed the jury that the plaintiff had the burden of establishing a true copy of the note sued on, the court improperly, in referring to the evidence of the plaintiff, stated that "the plaintiff undertakes to do it by resorting to certain papers he has and inferences he has drawn from the course of conduct he has followed in his business and in his habits," where in the next breath the court stated that "the defendant swears positively that the note he gave would be due in 1920 and not 1922, and he gives you his explanation as to why he has such a recollection about the matter, and then he also brings to you certain documentary evidence from which he points out certain entries, and contends that from these entries inferences should be drawn by you showing he is right about it and that the lost note was due in 1920." Under the evidence introduced by the plaintiff and by the defendant the above charge was error. There was evidence authorizing the jury to find for either party. The plaintiff, just as positively as did the defendant, testified as to the date of the note sued on. One of them was mistaken. This was for the jury. The plaintiff introduced certain documentary evidence, as did the defendant, which showed or indicated that the date of the note sued on was as testified to by him. In these circumstances the above excerpt from the charge was error, in that the court, in instructing the jury as to the plaintiff's evidence, restricted such evidence to circumstantial evidence only, and omitted to call the jury's attention to the plaintiff's positive testimony as to the date of the execution of the note, whereas the court did call the jury's attention to the defendant's testimony as to the date of the execution of the note.
3. In the second amended ground complaint is made of the following charge to the jury: "Where a plaintiff's right to recover depends upon the establishment of a particular fact, and the only proof offered for this purpose was circumstantial evidence from which the existence of such fact might be inferred, but which did not demand a finding to that effect, a recovery by the plaintiff was not lawful when, by the positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied upon by the plaintiff, it was affirmatively shown that no such fact existed." Under the evidence this was not a correct and applicable charge. The only proof offered by the plaintiff for the establishment of a copy of the lost note was not circumstantial evidence. He testified positively as to the date of the lost note, and then placed in evidence the documentary evidence referred to in which the note sued on was described as being dated as testified to by him.
The court erred in overruling the motion for new trial.
Judgment reversed. Sutton and Felton, JJ., concur.