Opinion
33405.
DECIDED JUNE 8, 1951.
Complaint on note; from Fulton Civil Court — Judge Carpenter. October 26, 1950.
James H. Dodgen, for plaintiff in error.
Clarke Anderson, contra.
Where, in an action on a promissory note, the defendant, after admitting a prima facie case in favor of the plaintiff, assumes the burden of proof, and the only evidence introduced in support of his plea of want of consideration or failure of consideration, is the defendant's own testimony, which is self-contradictory, vague, and equivocal, and which, when construed most strongly against him, as it must be, fails to sustain such plea or pleas, it is not error for the trial court to direct a verdict in favor of the plaintiff.
DECIDED JUNE 8, 1951.
Dave Marett brought an action on a promissory note against Mrs. H. J. Ray. The allegations of his petition, to which the note was attached and made a part thereof, are substantially as follows. During the year 1947 the plaintiff was engaged as a real-estate salesman by the Rowe Realty Company, who were, on or about March 1, 1947, engaged by one H. E. Edmondson for the purpose of acting as his agents in the sale of a farm owned by Edmondson. As a result of this contract with Edmondson, the plaintiff proceeded to advertise and show the farm to prospective purchasers. On April 1, 1947, the defendant, Mrs. H. J. Ray, was shown the farm and on April 21, 1947, she and Edmondson entered into a contract of sale. The consideration for the sale was to be $7500 of which $1000 was to be in cash and the balance to be the assumption of a G. I. loan. At the time the sale was to be closed, the defendant stated that she did not have sufficient cash to complete the sale. In order to allow the completion of the sale the plaintiff agreed to take a note in the sum of $349.04 as a part of his sales commission. The note was to become due on July 24, 1947. The sale was completed and the defendant took possession of the property and the note was drawn up and signed by the defendant, and delivered to the plaintiff. The petition also alleged that the note had not been paid upon demand and that the plaintiff had given the requisite ten-days notice to file suit. The prayer was for principal, interest, and attorney's fees.
The allegations of the defendant's plea and answer were substantially that she was not indebted to the plaintiff in the manner and form alleged or any form whatever. She admitted signing the note, but her signature was secured by fraudulent misrepresentation. There was no consideration for the note, as it was given under a representation that the plaintiff, payee in the note, was to deliver possession of the premises purchased from Edmondson immediately upon the closing of the real-estate transaction, and that the plaintiff failed and refused to deliver possession and she did not get possession of the premises until sixty days after the closing of the transaction. The note was secured by false and fraudulent representation in that the plaintiff represented to the defendant that there was more than $500 worth of oats on the property which he would deliver to her, but on the contrary the person then in possession of the property claimed the oats as his own and refused to allow the defendant to enter the premises or gather the oats. The note sued on in this case was given to the plaintiff by the defendant as the purchase-price of certain oats that were then on the premises which the plaintiff claimed he had a right to sell and did sell, and promised to deliver to the defendant the oats on the premises. The oats did not belong to the plaintiff and he had no right to sell the same. When the defendant attempted to take possession of the oats she found that the person then in possession claimed the oats belonged to him and that the plaintiff had no right, title, or interest in or to them and had no right to sell the same or deliver to the defendant.
Upon the trial, the defendant assumed the burden of proof, and after the introduction of her evidence, which consisted solely of her own testimony, the court directed a verdict in favor of the plaintiff for the principal, interest, and attorney's fees. The defendant's motion for a new trial, based upon the general and one special ground, was overruled and she excepted.
The burden of proof was upon the defendant to establish her affirmative defense of want, or failure, of consideration. She admitted her execution and delivery of the note to the plaintiff and admitted that the note had been duly presented for payment and that payment had been refused. Under such admissions, a prima facie case was made out for the plaintiff and it was encumbent upon the defendant to introduce evidence in support of her plea of want, or failure, of consideration to rebut such prima facie case. Code, § 14-301; Purcell v. Armour Packing Co., 4 Ga. App. 253 ( 61 S.E. 138); Willis v. Seiberling Rubber Co., 44 Ga. App. 468 ( 161 S.E. 789); Hawkins v. Collier, 101 Ga. 145, 148 ( 28 S.E. 632).
Under the allegations of the plaintiff's petition the note was given by the defendant to the plaintiff as part payment of the plaintiff's sales commission in effecting the sale and purchase of the farm property in question. The defendant contended that the note was given on the purchase-price of certain oats growing on the property which she had purchased.
"`The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. W. A. R. Co. v. Evans, 96 Ga. 481 ( 23 S.E. 494); Freyermuth v. R. Co., 107 Ga. 32 ( 32 S.E. 668); Ray v. Green, 113 Ga. 920 ( 39 S.E. 470); Farmer v. Davenport, 118 Ga. 289 ( 45 S.E. 244). And he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him. Southern Bank v. Goette, 108 Ga. 796 ( 33 S.E. 974).' Southern Railway Co. v. Hobbs, 121 Ga. 428 ( 49 S.E. 294)." Davis v. Akridge, 199 Ga. 867 (2) ( 36 S.E.2d 102).
Where the defendant, in an action upon a promissory note, admits a prima facie case in favor of the plaintiff and then fails to sustain his plea, it is not error for the court to direct a verdict against him. Krauss v. Flournoy, 7 Ga. App. 322 ( 66 S.E. 805); Fitzgerald v. Reid, 7 Ga. App. 323 ( 66 S.E. 813); Tarver v. Park, 20 Ga. App. 87 ( 92 S.E. 552); South Georgia Grocery Co. v. Virginia Baking Co., 31 Ga. App. 16 ( 119 S.E. 918).
Applying the foregoing rules of law to the evidence in this case the defendant failed to sustain her plea of want of consideration. The defendant's testimony was the only evidence introduced in the case, and this, on the question of whether the note was for the oats or for the plaintiff's commission, was contradictory, vague, and equivocal. It follows that the court did not err in directing a verdict for the plaintiff, nor err in overruling the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.