Cook v. Hightower & Son

Hill, C. J. The pleas in these cases contain the defenses: (1) that the notes sued, on were obtained from the defendant by duress and threats, and to settle a criminal prosecution against her husband, and' were not her contract; (2) that the notes were made to pay her husband’s debt, and were therefore void. In each case the trial judge, on oral motion, struck the first plea, and the case went to trial on the issue made by the other plea. Held: (1) The pleas setting up duress and illegality of consideration, in avoidance of the notes, were sufficiently full and specific in their allegations, and the trial judge erred in striking them. Whitt v. Blount, 124 Ga. 671 (53 S. E. 205); Lucas v. Castelow, 8 Ga. App. 812-813 (70 S. E. 184). And see Cromer v. Evett, ante, 654. (2) As to the second defense, that the consideration of the notes was the payment of a debt of the defendant’s husband, she being a married woman at the time, the facts were clearly in issue, under the evidence, and the trial judge erred in directing a verdict for the plaintiffs. The judgment overruling the motion of the defendant for a new trial must be reversed. Civil Code (1910), §§ 2993, 3007. Judgment reversed. W. I. Geer, for plaintiff in error, cited: Civil Code (1910), §§ 4116, 4255; 124 Ga. 671 (2, 3); 112 Ga. 426; 101 Ga. 84; 8 Ga. App. 812; 71 Ga. 35; 56 Ga. 566; 50 Ga. 155; 48 Ga. 358; 39 Ga. 85. Bush & Stapleton, contra, cited: 135 Ga. 702; 122 Ga. 812; 1 Ga. App. 798; 55-Ga. 413 (4).