Ricker v. Lowry National Bank

Stephens, J. 1. In a suit against the maker by the transferee of a series of promissory notes falling due consecutively, some of the notes appearing on the face to have matured and the others appearing not to have matured, where the defendant admits the execution of the notes and the indebtedness represented by them, and does not deny the allegation in the petition that the entire series is due by virtue of the terms of a collateral agreement between the maker and the payee which provides that the entire series shall become due upon default by the maker in payment of other notes in the series when due, but disputes the title of the plaintiff in the notes and pleads a failure of consideration and breach of warranty, a verdict for the plaintiff is demanded, in the absence of any evidence to sustain the defendant’s plea. 2. Where it does not appear what evidence was offered by the defendant in support of the plea of failure of consideration and breach of warranty, an assignment of error that the court erred in refusing to allow the defendant to prove by a named witness that the consideration of the notes had failed and that the ruling of the court in excluding the evidence prevented the defendant from establishing his defense presents nothing for consideration, where neither the evidence nor the nature of the evidence is set out. 3. There being no evidence that the plaintiff transferee had not acquired the notes bona fide for value and without notice of any defense by the maker, and the maker’s plea of failure of consideration and breach of warranty being predicated upon an alleged contract between him and the payee, and there being no evidence as to this contract, and it not appearing from any of the assignments of error in the motion for a new [329] trial that such contract was offered in evidence, none of the assignments of error in the motion for a new trial show ground for a reversal, since they except only to the failure of the trial judge to admit testimony tending to show that the consideration had failed and that the warranties contained in the contract had been breached. Decided February 24, 1921. Attachment; from Ben Hill superior court — Judge Gower. February 13, 1920. A. J. & J. O. McDonald, Vessie Jones, for Ricker. Wall & Grantham, Bamttel Kassewitz, J. H. Porter, contra. 4. It was not error to overrule the defendant’s motion for a new trial. Judgment affirmed on the main bill of exceptions; cross-bill dismissed. Jenkins, P. J., and Sill, J., concur.