Sale City Gin & Mfg. Co. v. Dukes

Bloodworth, J. (After stating the foregoing facts.) Under the rulings in Mallory v. Royston Bank, 135 Ga. 702, 706 (70 S. E. 586), Bond v. Kidd, 1 Ga. App. 798, 801, 802 (57 S. E. 944); Carswell v. Hartridge, 55 Ga. 412 (4), and Tolbert v. Caledonian Ins. [464] Co., 101 Ga. 741 (28 S. E. 991), the motion to strike the plea of duress should have been sustained. This being true, the court erred in admitting evidence complained of which was offered in support of the plea. However, under the pleadings and the facts, these errors were harmless to the plaintiff. Paragraphs 5 and 6 of the plea are as follows: “5th. Defendant further shows to the court that since the execution of said note defendant has discovered that said books were not properly and correctly checked up, and this de~. fendant i-n said accounting was not given credit for various items to which he was entitled to credit on the books of said company, and that the amounts to which he was entitled to credit, and for which he did not receive credit, amount to $281.90; and when said amounts are properly allowed, defendant B. H. Dukes will owe to plaintiff only a small balance, to wit $53.05 principal, which sum, .with accrued interest,’defendant now tenders to plaintiff.” “6th. And defendant shows to the court that when he has received proper credits for the amounts to which he was entitled to credit there is only a balance due to the plaintiff on said note, of said principal $53.05 accrued interest on same.” This portion of the plea was not demurred to, and, without objection, evidence was introduced that “upon going over the books and checking up the amounts, there were items which witness detailed, amounting to $281.90, for which he [Dukes] was entitled to credit, and which should be deducted from the amounts of said note, and . . an item of $20, not set up in his plea, that he paid to Mark Poor for plaintiff, and for which he had received no credit.” Add these items, $281.90 and $20, and we have $301.90. Deduct this from the amount sued for, and. it leaves $33.05, the exact amount of the verdict. Thus it appears that the jury gave no consideration to the plea of. duress and treated the note as valid for the full amount thereof, and that the verdict was rendered on the evidence as applied to the other plea. The plaintiff’s objection to this evidence was made first in this court, and is too late. The court did not err in overruling the motion for a new trial. • Judgment affirmed. Broyles, P. J., and Harwell, J., concur.