Opinion
32775.
DECIDED DECEMBER 5, 1949.
Complaint on notes; from Hall City Court — Judge Edmondson presiding. August 27, 1949.
Boyd Sloan, E. C. Brannon, for plaintiff in error.
G. Fred Kelley, Sam S. Harben, contra.
1. As to the general grounds, the evidence sustains the verdict.
2. "It was not harmful to the defendant for the court to exclude testimony, when testimony of the same import was allowed to go to the court and jury."
DECIDED DECEMBER 5, 1949.
Marcus Waldrip sued H. K. Wofford and V. B. Waldrip jointly as principals on several promissory notes. The notes were signed: "V. B. Waldrip (Seal), H. K. Wofford (Seal)." V. B. Waldrip filed no answer and the suit went by default as to him. H. K. Wofford filed a plea to the effect that although his name appeared on the face of the note as a principal, he was not a principal, but was in fact only a surety on the note. The suit alleged that he had in due course given notice as provided in Code § 103-306 that he would defend the suit on the notes on the ground that he was not a principal, but that he was only a surety on the note for V. B. Waldrip. The jury returned a verdict against the plea of suretyship filed by H. K. Wofford. Wofford filed a motion for a new trial and thereafter added two special grounds. His motion was overruled and he assigns error here.
The evidence reveals substantially the following: It was stipulated by the parties that Wofford admits a prima facie case and that he served the required statutory notice that he would file a plea of suretyship in the case. Materially to the issue here presented, Wofford testified: that he signed the notes; that V. B. Waldrip signed the notes on the top line and that V. B. Waldrip is the son of the plaintiff Marcus Waldrip; that the notes were made payable to the plaintiff; that witness and V. B. Waldrip, prior to executing the notes, had an agreement in which they were to form a partnership for the purpose of constructing houses to sell; that the witness told V. B. Waldrip that the witness did not have any finances; that the witness told his partner that he, the witness, had the experience; that his partner stated that he had three or four thousand dollars he would put into the business; that the partner stated to the witness that he had borrowed some money from his father; that V. B. Waldrip had agreed to furnish the finances in the business adventure; that the witness did not go to Marcus Waldrip to get the money and did not make any arrangements with him to furnish it; that V. B. Waldrip was to furnish the money; that Marcus Waldrip was not present; that V. B. Waldrip brought the notes to the witness already made out; that "I did not agree to be responsible as principal with Vertis [V. B. Waldrip] on the notes"; that the witness realized that if V. B. Waldrip did not pay the notes he would have to pay them; that the first house the partnership built was for V. B. Waldrip; that he was to sell it or rent it, as he saw fit; that the partnership never did build any house to sell; that the witness was to furnish the money and was to get half of what was made; that each partner was to draw a salary of $50 per week out of the business; that they had no written contract; that the witness had only $1200 when they started; that V. B. Waldrip was to furnish the money but that he was to get it back and then "we were to divide the profits." The witness detailed several projects which the partnership engaged in and testified to the effect that he thought V. B. Waldrip had paid the money to the plaintiff as represented by the notes, since V. B. Waldrip had charge of the collections and the paying of the amounts due. Thereafter the plaintiff came to the defendant and demanded payment of the notes in question. The witness told the plaintiff he would meet him at V. B. Waldrip's home. He communicated with V. B. Waldrip and V. B. Waldrip stated to the witness that he had not straightened the books out. He never did go to see either of the Waldrips as there was no use to go. He never did tell the plaintiff that he signed as surety, because "he never asked me." For this reason the witness did not remember what he said to the plaintiff. He never did tell V. B. Waldrip that he was surety on the notes until suit was filed on them, because V. B. Waldrip knew that the witness was only surety on the notes and the witness never said anything to V. B. Waldrip about signing as surety because V. B. Waldrip was to furnish the finances, and further, the witness told V. B. Waldrip that the witness was signing as surety and did so at the time. V. B. Waldrip was not to borrow any money when the partnership began. He said he had the money. V. B. Waldrip was to furnish from $2000 to $2500. The witness was to draw half of the money made. V. B. Waldrip was not to get anything for his work. At the termination of the partnership he was to get his money out that he put in. Witness collected $500 that he kept and V. B. Waldrip collected about $2000. None of these two sums was applied on the debt. The witness then went into some details as to what did and did not become of it. The partnership ceased operations about September 1, 1947. The witness testified that all the money had been collected. The witness is not trained in bookkeeping; he could not get V. B. Waldrip to audit the books and render a statement of the affairs of the partnership; the witness told the plaintiff that V. B. Waldrip would not make the audit of the business and the witness agreed to go with the plaintiff to see V. B. Waldrip. The witness testified that the partnership owed money and that the creditors were calling for their money and that on one job the witness collected $2780 and applied all of that amount except $523 on debts, which $523 the witness kept.
The witness was asked:
"Q. How did you get the three or four hundred dollars partnership fund in there if it was yours individually? How come you to get that?
"A. Well, I figured it up at the other hearing here what was paid out, there was one week of labor there paid.
"Q. Why did the partnership pay it if it was your individual job?
"A. I don't know why."
The plaintiff, Marcus Waldrip, testified substantially: that he knew Wofford, and that he knew concerning the money borrowed from the witness for the partnership of Wofford and Waldrip; that V. B. Waldrip came to the witness and stated that he and Wofford were going into business and wanted and needed some money and that they wanted to borrow the money from the witness; that nothing was said concerning either signing as security for the other in the negotiations; that the witness talked to Wofford after the notes became due and before suit was entered on them, and told Wofford that he was going to enter suit on the notes; that Wofford informed the witness that he would see V. B. Waldrip the next day or night and make an effort to straighten it out; that Wofford was going to meet the witness to make a settlement; that Wofford did not make any statement to the witness that he had signed the notes as surety then or at any time before suit was entered on the notes; that V. B. Waldrip told the witness that the money was being borrowed for the partnership; that if V. B. Waldrip, the son of the witness, had wanted to borrow money from the witness on the individual responsibility of V. B. Waldrip, that the witness would never have required any surety for his son; that he never had required any surety for this son or any of his children; that if the witness had required surety for his son he would not have accepted Wofford on it. The witness stated that the truth was that what money he loaned, he loaned on real estate. The witness never saw Wofford in this transaction.
V. B. Waldrip testified substantially: that he was a member of the partnership; that he formed the partnership with Wofford and put his time against Wofford's time; that it was understood between the witness and Wofford that they were to borrow a little money to get started on, and that neither was to put up any money on the partnership and that what money was borrowed was to be borrowed for the partnership; that the witness negotiated the loan from his father, the plaintiff in this suit. The witness suggested to Wofford that they could borrow a little money from his father. The witness made the arrangements and borrowed the money for the partnership. Nothing was ever said between the witness and Wofford in regard to Wofford signing only as surety. The witness and Wofford were to borrow the money and each was to sign the note. Wofford stated to the witness that, if they could borrow the money, they would pay it out of the business; that the witness filled the notes out and signed them and carried them to Wofford and Wofford signed them. The witness testified further: that the plaintiff charged four percent interest on the notes; that Wofford made the remark to the effect that they would pay the plaintiff six percent; that they had not expected to get it for four percent and that it was nice of the plaintiff to loan the money for four percent, and that Wofford remarked: "He really appreciated it." Wofford signed the notes as a member of the partnership and the money was used in the partnership business. The witness was never able to get Wofford to make a settlement; the witness endeavored to do so, but Wofford would never give the witness the information necessary to balance the books; Wofford promised to do so, but never did. The witness finally brought suit against Wofford to settle the affairs of the partnership. The first time that the witness learned that Wofford was claiming to be surety on the notes was when Joe Blackshear, Esq., informed the witness that such were the contentions of Wofford. The witness filled out the notes and inserted "we" instead of "I" in them. The witness has never been able to get Wofford to make an adjustment of what the partnership owed the witness or Wofford. The witness has not been paid anything for his salary in the partnership business except what they drew out together. Both drew out an equal amount. The partnership owed the witness the same as it did Wofford. He has never gotten any of his salary; he has never gotten any part to match the $500 which Wofford took out. He testified that the partnership still owed him a certain sum. The witness loaned the partnership $2000 in addition to the amount sued on. The notes represented partnership money and they were partnership notes. The witness loaned the partnership $2000 at one time. That was all the individual money the witness put in the partnership. There was no money paid into the partnership and no assets. The witness testified with reference to the house that was built for him that the partnership was to build it; that it was to belong to him; that he was to furnish the money to pay for it, and that he did; Wofford estimated that the house would cost the witness around $3500 and it cost him a little over $6000. This house was being built for the witness individually. The $2000 which the witness loaned the partnership and the $4000 borrowed from the plaintiff were deposited in the bank for the partnership and used for the partnership business.
1. Under the pleadings and stipulations there is but one question left for the court to decide. That question is, did H. K. Wofford, the plaintiff in error sign the notes as principal with V. B. Waldrip? The evidence on this issue is conflicting. The jury found against Wofford. The evidence, as will be seen by a reference to it, sustains the verdict. The trial court having approved this verdict, we are not authorized to set it aside. Wofford could, even though the notes did not show that he signed as surety and not as principal, establish by parol evidence that he signed the notes as surety and not as principal. This he endeavored to do, but the jury disagreed with him. We do not deem it of any benefit to call attention to authorities with reference to this principle of law. It is too well established. There is no contention as between counsel on this principle. The assignments of error on the general grounds are not meritorious.
2. We have set out the evidence in particularity as it relates to the two special grounds. This we did in order to illustrate our conclusions as to these special grounds. Counsel for both parties treat the two special grounds together in their argument, and we will deal with them together in the opinion.
When H. K. Wofford was on the stand, counsel for the defendant propounded to him a question to the effect as to who was supposed to pay the plaintiff the money in question. The witness answered: "V. B. Waldrip." Another question was propounded to Wofford to the effect as to who was supposed to be primarily responsible. The witness again responded, "V. D. Waldrip." Again the witness was asked: "You realize that you were signing as surety? Answer, Yes, sir." Counsel for the plaintiff objected to this testimony on the ground that it was a conclusion, hearsay, irrelevant and in contradiction to the notes and at variance with the valid written instrument. The court sustained these objections and refused to allow the testimony. It is averred in this motion that the testimony was offered by Wofford and that the court ruled the evidence out and would not let it be considered by the jury; that the evidence would have been beneficial to Wofford and that the exclusion of it was hurtful and prejudicial to him for the reasons (a) that the ruling prevented Wofford from proving suretyship as set out in his plea, and he was excluded from the right to prove suretyship; (b) that the evidence was material to the issue involved in the case for the reasons that the only issue submitted to the jury was the issue of suretyship and this evidence was material proof of suretyship. The second ground assigns error because when Wofford, a witness for the defendant, was on the stand, the court refused to allow an answer to a pertinent question propounded by counsel for Wofford. The question was: "Mr. Wofford, did you sign the three notes as principal or surety?" If the witness had been permitted to do so, he would have answered that he "signed as surety and not as principal." The court was then and there informed at the time the question was asked that the question would be answered as above stated if the witness was permitted to answer. It is contended that this testimony was material to the issue involved in the case and that the refusal of the court to permit the witness to answer the question was prejudicial to the movant because it prevented Wofford from getting the benefit of testimony to prove the suretyship which was the only issue in the case. We think the court should have permitted the witness to have answered, but the question is, was this reversible error? We have called attention to the evidence as above stated, somewhat in detail. When we review the whole testimony in the case, the evidence of the same import and effect complained of was given by the same witness without objection. In another portion of the testimony Wofford testified: "I signed it as surety." Another part of the record reveals that Wofford testified without objection: "I did not agree to be responsible as principal with Verdis [meaning V. B. Waldrip] on the notes. I didn't agree to be responsible principally. I realize that if Verdis does not pay the notes, I will have to pay them." In another portion of the testimony Wofford was asked if he told V. B. Waldrip that he was surety only before suit was filed. He answered: "Verdis knew I was surety on it." He was again asked if he ever said anything to V. B. Waldrip about signing as surety, and he answered that V. B. Waldrip was to furnish the finances. Again he was propounded the question, "Q. You never told Verdis a word that you were signing as surety?" Answer: "Yes, sir." He was again asked in effect if he contended at the time that he was on as surety and he replied: "Yes, sir." This court in Davis v. Wing, 72 Ga. App. 380 (3) ( 33 S.E.2d 725), said: "It was not harmful to the defendant for the court to exclude testimony, when testimony of the same import was allowed to go to the court and jury." See also in this connection, Ables v. Motor Contract Co., 200 Ga. 30 (3) ( 36 S.E.2d 148). In Cauthern v. Gresham Lumber Co., 57 Ga. App. 497, 498 ( 196 S.E. 242), this court said: "Where the movant in a motion for a new trial complains of a ruling excluding certain testimony, and this testimony, in substance, appears in the approved brief of evidence, the apparent conflicting statements will be harmonized by holding that, notwithstanding the ruling, the court at some other stage of the witness's testimony allowed the evidence. Under such facts the ruling will not require a new trial, even if the evidence was admissible." There are other decisions to the same effect. The assignments of error on the special grounds show no cause for reversal.
3. The motion to dismiss the bill of exceptions is denied.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.