Opinion
43130.
ARGUED OCTOBER 5, 1967.
DECIDED NOVEMBER 21, 1967.
Action on note. Fulton Civil Court. Before Judge Williams.
John C. Tyler, for appellants.
Grant, Spears Duckworth, William H. Duckworth, Jr., Robert W. Spears, for appellee.
Where in an action on a note the defense is predicated on the fact that the individual defendant signed as a surety and the evidence is conflicting as to whether the payee had knowledge of such fact, the judgment for the plaintiff in the trial court will not be disturbed.
ARGUED OCTOBER 5, 1967 — DECIDED NOVEMBER 21, 1967.
Mrs. A. L. Crowe filed suit in the Civil Court of Fulton County against Thomas J. Northcutt and Thomas J. Northcutt, Inc., and sought a money judgment on a promissory note, signed by both defendants, which she had acquired by transfer from the original payee, D. W. Watson.
The individual defendant filed an answer in which he alleged that he was, in reality, merely a surety on the promissory note and had tendered to the plaintiff the amount of $39,935.17 which included principal, interest and attorney's fees. It was further alleged that the plaintiff refused to accept the tender, which action on her part discharged the defendant as a surety ( Code § 103-204).
The case was heard without the intervention of a jury, and the trial judge, after hearing evidence, found for the plaintiff as against both defendants and entered judgment accordingly. The defendants filed a motion for new trial which was overruled, and they now appeal to this court.
The pertinent undisputed facts relative to a determination of this case are as follows: On April 8, 1959, the defendants executed a promissory note to D. W. Watson. The note recited "We promise to pay" and was signed by "Thomas J. Northcutt, individually," and "Thomas J. Northcutt, Inc., by: Thomas J. Northcutt (President)." Subsequent to that date, the note had several times been past due and the due date had been extended by modification agreement. The plaintiff's deceased husband was the holder of a security deed (from the corporate defendant), prior in date to, but by its express terms subordinate to, the deed for the same property given to secure the above mentioned note. On March 1, 1963, for a valuable consideration the payee on the promissory note, D. W. Watson, transferred such note to the plaintiff. Subsequently, the balance on the note being past due and unpaid, the plaintiff filed the instant action. The individual defendant tendered to the plaintiff the correct amount on the note but conditioned such tender on plaintiff's delivering up the deed given to secure the note ( Code § 103-204).
Since the point here raised in tantamount to the general grounds of a motion for new trial, the rule is applicable that the court will not grant a new trial on the ground that the verdict is contrary to the evidence, if there is any evidence at all to support it. Hixon v. Callaway, 5 Ga. App. 415 (2) ( 63 S.E. 518); Stallings v. Britt, 204 Ga. 250 (3) ( 49 S.E.2d 517). In the absence of legal error, an appellate court has no jurisdiction to interfere with a verdict supported with some evidence, even though the verdict was against the preponderance of evidence. Black v. Duncan, 79 Ga. App. 342 ( 53 S.E.2d 726); Smith v. State, 95 Ga. App. 775 (2) ( 98 S.E.2d 606); Thompson v. Fouts, 203 Ga. 522 (3) ( 47 S.E.2d 571).
The plaintiff argues that she was a holder of the note in due course, without actual knowledge of the agreement, and hence the defense of suretyship could not be invoked against her. Wilkes v. Pope, 4 Ga. App. 36 ( 60 S.E. 823). Without deciding this question, we will assume she stands "in the shoes" of the payee who transferred the note to her.
"Where two or more persons sign a note apparently as joint principals, and there is nothing in the instrument indicating that some of the makers are principals and others sureties, the presumption of law is that all are joint principals. This presumption, however, may be rebutted, and in an action by the payee against all the makers as joint principals it may be shown by parol evidence that some of the makers are sureties for others, the burden being on those setting up suretyship to establish it; and where they claim to be discharged by some act increasing their risk as sureties, they must further show that the payee knew they were sureties at the time of the occurrence of such act." Bank of Lumpkin County v. Justus, 150 Ga. 286 (2) ( 103 S.E. 794). See Bank of LaFayette v. Giles, 208 Ga. 674 (5) ( 69 S.E.2d 78). "In order to establish as a fact that the ostensible maker of a promissory note executed the note as surety only, and not as a principal, it must be shown that the payee contracted with him as a surety; and where the payee did not at the time know that the person signing the note was obligating himself for the payment of the debt of another, it is not established that the payee contracted with the obligor as a surety." National City Bank v. Whittier, 41 Ga. App. 221 (2) ( 152 S.E. 305); Hall v. Rogers, 114 Ga. 357 (1) ( 40 S.E. 250); Seymour v. Bank of Thomasville, 157 Ga. 99 (1) ( 121 S.E. 578). Thus, the vital issue here presented is whether the payee knew that the individual defendant was acting as a surety.
In this case the individual defendant testified that the original payee, D. W. Watson, was aware of the fact that he was acting only as a surety on the note and that the parties had so agreed. The plaintiff's son who represented her deceased husband in the described transactions stated positively that until the suit was filed he had no knowledge that the individual defendant was acting merely as a surety, although the defendant flatly contradicted this. Moreover, the payee, D. W. Watson, who was a witness for the defendant, testified that he did not know the defendant was a surety nor was there any agreement between them to that effect. While the testimony of the witness was somewhat contradictory and not at all clear as to certain material issues, there was some evidence from which the trial judge might find an absence of knowledge of the payee as to the defendant's acting as a surety on the note. Conflicts in the evidence and the credibility of witnesses are questions within the prerogative of the trior of fact and this court will not interfere with his determination of such matters. Jacobs v. State, 71 Ga. App. 808 (1) ( 32 S.E.2d 403); Latham v. Duke, 87 Ga. App. 466, 468 ( 74 S.E.2d 403); Moss v. Moss, 169 Ga. 734 ( 151 S.E. 506); Butler v. State, 186 Ga. 556 (1) ( 198 S.E. 710).
Judgment affirmed. Jordan, P. J., and Deen, J., concur.