Opinion
38355.
DECIDED JUNE 22, 1960. REHEARING DENIED JULY 12, 1960.
Action on notes. Fulton Civil Court. Before Judge Henson. March 24, 1960.
Nall, Miller, Cadenhead Dennis, B. Carl Buice, for plaintiff in error.
J. Walter LeCraw, contra.
1. The prima facie presumption that negotiable paper is issued for a valuable consideration yields to direct, uncontradicted, and unimpeached evidence that there was in fact no consideration. In such a case the plaintiff could not recover on the presumption alone, but would have to carry the whole case by virtue of a preponderance of the evidence.
2. Where, however, every witness testifying to the fact that there was no consideration for the notes in question was contradicted by other evidence, or by prior contradictory statements on a material point, so that it would be a question for the jury whether any part of the testimony of such witness should be given credit, then the issue should be left to the jury to decide, and their determination as to where the preponderance of evidence lies would be primarily determined by the weight and credit which they saw fit to give to the testimony of the witnesses sought to be impeached.
DECIDED JUNE 22, 1960 — REHEARING DENIED JULY 12, 1960.
Malcolm Goldstein, as executor of the estate of W. H. Goldstein, filed suit in the Civil Court of Fulton County against Cecil Drexler on six promissory notes dated December 18, 1946, June 23, 1947, and July 24, 1947. The defendant answered that he was not indebted, that there was no consideration for the notes, and that the defendant has no recollection of having ever signed them. Between the filing of the action and its trial Malcolm Goldstein resigned as executor of the estate, and the widow of the deceased, Rosalee Goldstein, was appointed administratrix. The plaintiff introduced the notes in evidence and testified that they were found among her husband's personal effects after his death, in a desk at his home. Malcolm Goldstein, appearing as a witness for the defendant, testified that Cecil Drexler was his brother and both were brothers of the deceased; that this suit was desired by the attorney for the estate; that the witness had actually been a witness to the execution of the notes and the circumstances of such execution were that W. H. Goldstein treated his younger brother Drexler more as a son than a brother; when Drexler started off in business the older brother seemed to think he would not make good, and therefore told the witness in front of the defendant that he was going to take the notes and hold them as security, not for the purpose of debt, but to give himself the status of a creditor if Drexler were "forced into a bad situation" so as to protect the money; that W. H. Goldstein further suggested that "it would look too phony" to have all the dates and amounts the same, and therefore the notes were made out as of different dates and for different sums, but actually they were all prepared and executed on the first date shown, in December, 1946; that he knew there was no consideration for the notes, he never saw them again and his brother never mentioned them; he thought they had been destroyed until they turned up after Goldstein's death.
Natalie Cooper testified that she was a sister of the defendant and of the Goldsteins; that she had worked for the deceased from 1933 to 1950 as bookkeeper, payroll clerk, correspondence and in general office work; that he was engaged in manufacturing Neckties and children's apparel; that Drexler worked there from the age of 13 until he went in business in 1946; that Goldstein told her, "I am going to draw up some notes for Cecil Drexler to sign so as to protect Cecil in case his business did not make a success, and I would have these notes to present over any future notes or debts that he would incur in case his business did go under." He later told her: "I have them so that if anything happens to his business he will be protected by my having these notes." This occurred in December, 1946.
The defendant testified that at the time the action was served on him he did not remember signing the notes; that he now recognizes his signature on them; that no demand for payment had ever been made on him during his brother's lifetime; that he was first informed about the notes by a letter from the attorneys for the estate.
At the close of the evidence the court, on motion, directed a verdict for the defendant. The plaintiff made a motion for new trial which was amended by two special grounds, each assigning error on the direction of the verdict. The denial of this motion is assigned as error.
1. Code§ 14-301 provides: "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value." The first special ground of the motion for a new trial raises the question of whether the presumption of consideration continues in the presence of adverse testimony so that, even without additional testimony for the plaintiff, a jury question remains in the case. Code § 38-113 states: "Presumptions are either of law or of fact. The former are conclusions and inferences which the law draws from given facts. The latter are exclusively questions for the jury, to be decided by the ordinary test of human experience." Code § 38-118 provides: "Other presumptions of law, such as of innocence, and in some cases of guilt, of continuance of life for seven years, of a mental state once proved to exist, and all similar presumptions, may be rebutted by proof." "But bare presumptions of law give way to testimony, which may shift the burden of proof or of proceeding to the opposite party, and he is then not entitled to prevail upon the presumption alone." Hamby v. Crisp, 48 Ga. App. 418, 421 ( 172 S.E. 842). See also National Life c. Ins. Co. v. Hankerson, 49 Ga. App. 350 (7) ( 175 S.E. 590); Gibson v. Gibson, 54 Ga. App. 187 (1) ( 187 S.E. 155). Accordingly, where all of the evidence in the case affirmatively establishes a want or failure of consideration, the plaintiff would not be entitled to recover solely on the prima facie presumption of consideration arising from the fact that the instrument in question is negotiable and recites "for value received." In such a case it would not be error to direct a verdict.
2."Not only may an issue of fact arise from contradictory evidence, but implications inconsistent with the testimony may arise from the proved facts, and in still other ways the question of what is the truth may remain an issue of fact despite uncontradicted evidence in regard thereto. Cooper v. Lumbermen's Mut. Cas, Co., 179 Ga. 256, 261 ( 175 S.E. 577); Employers Liability Assurance Corp. v. Woodward, 53 Ga. App. 778, 779 (3) ( 187 S.E. 142)." Smith v. U.S. Fidelity c. Co., 94 Ga. App. 507 (3) ( 95 S.E.2d 35). "Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts." Brown v. Matthews, 79 Ga. 1 ( 4 S.E. 13). The direct, positive, uncontradicted testimony of an unimpeached witness cannot be arbitrarily disregarded. Myers v. Phillips, 197 Ga. 536 (4) ( 29 S.E.2d 700). Had the testimony been only as set out in the statement of facts, supra, without the question of impeachment entering into the case, there could be no doubt but that the judgment, of the trial court directing a verdict in favor of the defendant would be correct. It is true that he saw the witnesses and was able to form his own opinion of the truth or falsity of their testimony; nevertheless, the ultimate question of whether a witness has been successfully impeached is solely for the jury, and, if he has been so impeached, the jury may disbelieve his entire testimony. Swift Co. v. Lawson, 95 Ga. App. 35 ( 97 S.E.2d 168). "When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury, but if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." Code § 38-1806.
The defendant in this case could not prevail unless the jury was willing to believe the testimony of either his brother or his sister, or both. As to the brother, it appears that he first, as executor of the estate, filed suit on the notes; he signed a jurat form stating that the allegations of the petition were true and the account sued on is just, due, and unpaid (although this form was never attested); he received two letters from his attorneys, one just before and one just after the suit was filed, one of which set out that Goldstein had stated his "impression that they [the notes] represent merchandise purchase . . . and that this would be the nature of your testimony upon the trial of the issues," and the other advising Goldstein as executor that he was required to make a decision as to the collectibility of the assets; that a lawsuit cannot be filed on an equivocal basis; that the widow, Rosalee Goldstein "did not want the estate to incur any further attorney's fees in the filing of the suit against Cecil. I do not see any necessity for this being done either," and advising him, since he was to terminate the executorship by resignation, to leave the decision to his successor. These letters were never answered by the witness. Code § 38-120 provides: "In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from the other to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent, and to adopt them." It thus appears that the jury might have found that this witness, after informing his attorneys that the notes represented merchandise purchases, and after insisting upon filing suit in the face of their resistance, then abandoned his position as plaintiff and testified for the defendant that the notes did not represent merchandise purchases but were a fraudulent scheme concocted illegally to prefer assets in the event of future financial difficulty. Under these circumstances they would be authorized to reject his entire testimony.
The only other witness, Natalie Cooper, contradicted herself also in certain particulars. She testified in conflict with her testimony on previous depositions as to the deceased's habit of keeping large amounts of cash around his office (this being material because she based her conclusion as to the lack of consideration for the notes partly on the fact that there were no sums of money which could have been turned over to the defendant without her knowledge). Whether she successfully explained the contradiction in her testimony was for the jury to decide; if they found she swore wilfully falsely on either occasion, they would have to disregard her testimony in its entirety, the depositions being in the same case. Again, she swore positively: "During the latter part of 1946, Cecil Drexler never received any money from Bill Goldstein," following which the plaintiff introduced in evidence six canceled cheeks dated from August through October, 1946, signed "Crescent Neckwear Company by W. H. Goldstein" and naming the defendant as payee. The checks totaled less than 10% of the face value of the notes; nevertheless, in view of the witness' positive testimony as to her knowledge of all the financial transactions of her deceased brother's company in which she worked as bookkeeper, and the fact that there was no consideration for the notes was based on this knowledge, the contradiction was such as to demand that the jury and not the court pass on the weight to be given it. Further, the relationship of the witnesses to the parties may be taken into consideration by the jury in estimating the credit to be given to them. Simpson v. State, 78 Ga. 91.
It appears from the opinion of the trial court that he directed the verdict primarily on the proposition that, since the evidence showed a contract for an illegal purpose, the law would leave the parties where it found them. If the jury should believe the witnesses for the defendant, then this conclusion would be demanded. If, however, it found all of them totally unworthy of credit, the case would be as though the defendant had introduced no evidence, and the plaintiff would still have the prima facie presumption arising from the introduction of the notes in evidence to aid her case. The credit to be given these witnesses being a jury question, the trial court erred in denying the motion for new trial complaining of the direction of a verdict for the defendant.
Judgment reversed. Gardner, P. J., Carlisle and Frankum, JJ., concur.