Underwood v. Craven

Lumpkin, J.

Suit was brought on a promissory note by the payee named

therein against the executor of the maker. On the trial the plaintiff was introduced as a witness by the defendant, and testified, that the maker of the note was her uncle, with whom she had lived since childhood; that he had written it out in a little day-book or memorandum-book and left it in a drawer where he and she kept their papers together, and where she found it after his death, and tore it from the book in which it was written; that she did not know of its existence prior to that time; and that “I had the first note lie gave me in there.” There was no evidence of any agreement to make a note, or of any intention to part with the dominion over it, except as above indicated. The note on which the suit was based recited that it was for “value received of her at 8 per cent, interest and compound interest from date of first note.” The maker of the note had previously executed a will in which he left all of his property for life to the person named as payee in the note. Held, that a verdict in favor of the plaintiff was contrary to the evidence, and without evidence to support it. Maddox v. Gray, 75 Ga. 452 ; Jackson v. Gallagher, 128 Ga. 321 ( 57 S. E. 750 ); Disher v. Disher, 1 P. Wms. 201; 1 Dan. Neg. Inst. 63, 63a, and citations.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.

Complaint. Before Judge Jones. White superior court. December 13, 1913. W. A. Charters, for plaintiff in error. G. S. Kytle, J. J. Kimsey, and Samuel Kimzey, contra.