Opinion
37348.
DECIDED OCTOBER 30, 1958.
Action on note. Fulton Civil Court. Before Judge Etheridge. June 23, 1958.
Miles B. Sams, for plaintiff in error. Troutman, Sams, Schroder Lockerman, Tench C. Coxe, Robert L. Pennington, contra.
1. The defendant having admitted the execution of the note and pleaded want of consideration, a prima facie case was made out for the plaintiff, and the defendant assumed the burden of proof as to the plea. Ray v. Marett, 84 Ga. App. 86 ( 65 S.E.2d 646); Morgan's, Inc. v. Mons, 79 Ga. App. 525 (2) ( 54 S.E.2d 498).
2. The evidence did not demand a finding that the note was given for the suspension, suppression or discontinuance of a criminal prosecution. Therefore, the court was authorized to find against the plea and in favor of the plaintiff.
The court did not err in denying the motion for new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur.
DECIDED OCTOBER 30, 1958.
Pauline Hewitt sued Robert O. Messer on a promissory note. The defendant admitted the execution of the note but pleaded want of consideration in its making. The case was tried by the court sitting without the intervention of a jury.
The evidence as set out in the brief of evidence was as follows: "No testimony was given for the plaintiff in this case.
"A copy of a note was offered to the court by the attorney for the plaintiff and admitted over the objections of the defendant, no evidence having been given as to the note, its contents or any other information; the note was not exhibited to the attorney for the defendant before or after being tendered to the court by the attorney for the plaintiff and admitted by the court as evidence.
"Statement was made by the court that the note itself makes a case for the plaintiff, same having been admitted in the answer of the defendant, any evidence now to be offered by the defendant in defense of the note will be heard by the court.
"Defendant was sworn, and under cross-examination admitted the existence of a note, but neither admitted nor denied that the note tendered was the note signed by him. He stated that there was no consideration for the note at the time of the making of same, nor had there ever been any consideration for the note.
"Under cross-examination by the court, defendant stated that he had been involved in an accident in which he was charged with the offense of `Drunk Operating,' and leaving the scene of an accident. That he was further charged with striking the plaintiff in this case with his automobile, all of which he denied. He further stated to the court that he had given the note to the attorneys for the plaintiff under a promise that they would assist him in his trial under the criminal charges, and they stated that it would go lighter on him if he would make and deliver a note to the plaintiff; which he did, but that no assistance was ever given or offered to him by the attorneys for the plaintiff and that he was convicted of operating under the influence when tried for same.
"During the course of examination of defendant by the court, defendant testified that he was convicted of drunk driving arising out of an accident involving plaintiff and himself, that plaintiff claimed she was struck and injured by a truck driven by defendant, and that since giving her the note he has not been sued. When asked if part of the consideration for the note was to prevent his being sued by plaintiff for personal injuries, he indicated that such was the case. He still claimed that her attorney promised him it would go easier on him in his criminal trial if he signed the note.
"He was unable to testify exactly what was said by her attorney. However, he did not testify that he was told that the execution and delivery of the note would prevent or lessen his chances of conviction and/or subsequent punishment, the gist of the promises being only that things would go easier on him in his trial if he signed the note. He did not testify how he expected the note to help him or what he expected plaintiff's attorney to do for him. He did not testify what his punishment in fact was nor what it would have been had plaintiff's attorney assisted him.
"At the time he signed the note, both he and plaintiff were represented by attorneys.
"He admitted having himself paid plaintiff instalments on the note totaling $116, the last payment having been made in July, 1955.
"Attempt by the attorney for the defendant to go into the trial of the criminal case which had been developed by the court was overruled by the court. . . "
The court found for the plaintiff. The defendant's motion for new trial was denied, and he excepts.