Opinion
36121.
DECIDED APRIL 27, 1956.
Action on check. Before Judge Parker. Fulton Civil Court. January 30, 1956.
Haas, Holland Blackshear, Jack H. Zinkow, for plaintiff in error.
Daniel B. Hodgson, Alston, Sibley, Miller, Spann Shackelford, contra.
The trial court did not err in sustaining the plaintiff's demurrer to the defendant's answer, nor in thereafter rendering judgment for the plaintiff.
DECIDED APRIL 27, 1956.
Sears, Roebuck Company brought an action against I. Heiman and L. M. Heiman, trading as Star Provision Company, to recover on a check issued by the defendant partnership payable to the order of Edward Holler. The petition alleged that the plaintiff was a holder in due course, who took such check and gave the amount of money shown on the face of the check to Edward Holler after he endorsed said check in blank; that the check had not been dishonored, was not overdue, was complete on its face; and that the plaintiff took it in good faith. The petition further alleged that the plaintiff presented the check to the drawee bank; that it was returned to the plaintiff unpaid and dishonored for the reason that payment had been stopped; that notice of dishonor was promptly given to the defendant by the plaintiff; and that the defendant has never paid to the plaintiff the sum demanded and has refused to pay the same. Process and a judgment in the amount of the check were prayed for. A photostatic copy of the check was attached to the petition as an exhibit.
The defendant partnership filed its answer, in which it admitted all the allegations of the plaintiff's petition except that it was indebted to the plaintiff. For further plea and answer the defendant alleged that the check was given by the defendant to Edward Holler, the payee named in the check in payment for nine swine; that Holler, by means of fraud and deception, induced the defendant partnership to purchase the swine, and issue and deliver to him its check in payment therefor, by falsely asserting that he had good title and the right to sell said nine swine; that the defendant partnership learned after purchasing such swine that the said nine swine had been stolen by Holler from the "Honor Farm" operated by the U.S. Government at its penitentiary in Atlanta, Georgia; that the U.S. Government asserted its claim to said swine against the defendant partnership; and that, upon proof of ownership being presented by the U.S. Government, the defendant partnership delivered said swine to the Government.
The plaintiff filed a general demurrer to the defendant partnership's answer on the ground that such answer set forth no defense to the petition. The trial court sustained the demurrer and struck the defendant partnership's answer, and thereafter rendered judgment for the plaintiff in the amount sued for, there being no issuable defense remaining in the case.
The defendant partnership excepts to the judgment sustaining the plaintiff's general demurrer to its answer and to the final judgment for the plaintiff.
Construing the pleadings in the answer of the defendant most strongly against the pleader, as must be done on demurrer, the answer, although alleging that the swine were stolen, is an attempt to set up "fraud in the procurement" as a defense to the plaintiff's petition. "Fraud in the procurement of a negotiable instrument as a defense, refers to fraud on the part of the holder and not fraud on the part of the person obtaining such negotiable instrument from the maker. Evans v. Johnson, 77 Ga. App. 277, 279 ( 48 S.E.2d 159), and cases cited." Henry v. A. L. Zachry Co., 93 Ga. App. 536, 538 ( 92 S.E.2d 225).
The answer does not purport to charge the plaintiff with fraud in the procurement, for the answer admits that the plaintiff is a holder in due course, and the argument by the defendant's counsel that the consideration for which the check was given was illegal and immoral need not be considered) inasmuch as the answer fails to plead this defense, and only shows that the swine were stolen to support the contention that the seller of the swine induced the defendant partnership to purchase the swine by falsely asserting that he had good title to the swine, and it need not be decided whether or not a plea that the check was void because the swine were stolen from the United States Government would withstand demurrer.
Therefore the trial court did not err in sustaining the plaintiff's demurrer to the answer and in thereafter rendering judgment for the plaintiff.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.