Opinion
34207.
DECIDED OCTOBER 15, 1952. REHEARING DENIED NOVEMBER 25, 1952.
Action on note; from Fulton Civil Court — Judge Parker. June 13, 1952.
Smith, Field, Doremus Ringel, for plaintiff in error.
Louis D. Yancey Jr., William Woodruff, contra.
1. "An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser without receiving value therefor and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." Code, § 14-306. And it has been held that, "under the negotiable instruments law, the rule is that, where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery for the accommodation of the payee, he is liable to all parties subsequent to the payee, but not to the payee." McLendon v. Lane, 51 Ga. App. 409 ( 180 S.E. 746). But "one who indorses a note for the accommodation of the maker is liable to the one to whom the note is given for value, although it would be otherwise if endorsed for the accommodation of the latter." 11 C. J. S. 306, § 748; and see Bridge v. Ruggles, 202 Cal. 326 ( 260 P. 553). Thus, in a suit on a promissory note brought by the payee named therein against an endorser in blank, not otherwise a party to the note, where it appears that the evidence is in sharp conflict on the question of whether the note was endorsed by the defendant as an accommodation to the payee or as an accommodation to the maker before delivery, a judgment of a court, sitting without the intervention of a jury, will not be disturbed as contrary to law and without evidence to support it.
2. "It is not error to reject testimony of a witness where substantially the same testimony of the same witness is elsewhere admitted." Herrington v. Herrington, 42 Ga. App. 126, 129 (11) ( 155 S.E. 51). And since the brief of evidence in the record is replete with testimony to the same effect, offered by the same witness, the trial court did not err in rejecting the testimony of the defendant that he "did not endorse them [the notes sued on] for Knox Atlanta Homes [the corporate maker]. I endorsed them for Mr. Vrooman [the plaintiff payee.]" Special ground 1 (numbered 4) is without merit.
3. The introduction of the garnishment-dissolution bond in evidence, of which complaint is made in special ground 2 (numbered 5) of the motion for new trial was not erroneous in view of all the other evidence in the record concerning the bond which was unobjective to.
4. Special ground 3 (numbered 6) is but an elaboration of the general grounds and requires no further discussion.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED OCTOBER 15, 1952 — REHEARING DENIED NOVEMBER 25, 1952.
Philip E. Vrooman brought an action on certain promissory notes against James A. Parker. The material allegations of the petition were substantially as follows: The defendant is indebted to the plaintiff in the sum of $1699, plus six percent interest from July 18, 1951, and in addition thereto is indebted to the plaintiff for ten percent of the total of those amounts as attorneys' fees. On July 18, 1951, fourteen promissory notes in a series were executed by Knox Atlanta Homes Incorporated, and were made payable to the plaintiff, to whom they were delivered for a valuable consideration. All of said notes, with the exception of the last one were in the principal sum of $200 and bore interest at the rate of 6 percent per annum. The last note was for $99 and bore interest at 6 percent. Prior to the acceptance of the notes by the plaintiff, and as an inducement for their acceptance, the notes were signed on the back thereof in blank by the defendant and one Gunther F. Reis. All of the notes were executed on July 18, 1951. The first note matured on July 20, 1951, and each successive note matured every seven days thereafter. All the notes were identical except as to the amounts and dates indicated above. A copy of one of the notes was attached to the petition and is in the following terms: "$200.00 Atlanta, Ga., July 18, 1951
On or before August 24th, 1951 after date, I promise to pay Philip E. Vrooman or order Two Hundred Dollars, for value received, at Atlanta, Ga., with interest from maturity at the rate of 6 percent per annum until paid and all costs of collection, including ten percent attorney's fees, if collected by law or through an attorney. And each of us, whether maker or endorser, hereby severally waives and renounces for myself and family any right to the benefits of the homestead and exemptions provided for by the laws of the State of Georgia, or the United States, as against this debt or any renewal thereof; and each further waives demand, protest and notice of demand, protest and non-payment. Given under the hand and seal of each party. This note is one of a series of 14 notes, aggregating the amount of $2688.00 Dollars, as evidenced by escrow agreement of even date, owing by me to payee, and it is expressly agreed that time is of the essence of this contract, and should I fail to pay 1 of said notes within 7 days from the time the said notes become due, then all of said notes shall become due and collectible at the option of the holder. Given under ____ hand ____ and seal ____.
Knox-Atlanta Homes, Inc.
By Gunther F. Reis, Pres. (Seal)
By James A. Parker (Seal)
[On reverse side] James A. Parker Gunther F. Reis"
On August 11, 1951, the contract was in default, and the plaintiff, pursuant to its terms, exercised his option and declared the entire indebtedness due by giving written notice to the maker and sending a copy to the defendant. A total of five notes has been paid in the series, which leaves a balance due of $1699 together with interest thereon at 6 percent from July 18, 1951. The requisite statutory notice of intention to bring suit was given.
In his answer, the defendant denied every allegation of the petition save that of his residence, and for further plea and answer, as amended, alleged that he was not indebted to the plaintiff in any sum whatever; that he was not a party to the transaction between Knox-Atlanta Homes Inc., the maker of the instrument sued on, and the plaintiff, and his endorsement on the note was not in anywise necessary for the perfection of the instrument; that the plaintiff knew that the financial condition of the maker corporation was very poor and that it would be difficult for him, in order to secure the monies represented by the notes, to sell, transfer, assign, or hypothecate the notes; that, at the time the notes were accepted by the plaintiff from the maker corporation, the plaintiff claimed many thousands of dollars were owed him by the corporation, but that the plaintiff was in need of funds and he, therefore, compromised his claim against Knox-Atlanta Homes Inc. for an immediate cash payment plus the notes here sued on; that the plaintiff-payee stated to the defendant that he was sorely in need of funds and asked the defendant to endorse the notes in order to strengthen the notes, and asked the defendant to lend his credit to the notes for the benefit of the plaintiff-payee, and as an accommodation, so that he could sell, transfer, and assign the notes immediately; that the plaintiff-payee asked the defendant as a favor and an accommodation to him, to endorse the notes for the benefit of the plaintiff-payee, and not for the benefit of the maker; that the defendant was an accommodation endorser for the plaintiff-payee, and there was no consideration flowing to the defendant, and he was not liable on the notes to the payee and is not now liable to him, as the notes have not been negotiated prior to the bringing of the suit and the notes are still in the hands of the plaintiff-payee.
Neither the plaintiff nor the defendant filed demurrers and, on the trial of the case before the judge without a jury, a judgment was entered for the plaintiff in the amount of $1699, plus $169.90 as attorneys' fees.
The defendant's motion for new trial. based on the usual general grounds and three special grounds, was overruled and he excepted.