Brantley Co. v. Lee , 106 Ga. 313 ( 1898 )

Lewis, J.

1. Civil Code, § 5047, provides that all demurrers- and pleas shall be filed and determined at the first term, unless continued by the court, or by consent of parties. It does not appear from the record in this case when the plaintiff’s demurrer to the plea was filed, or whether it was filed at all. It does appear, however, that the judgment overruling the demurrer was rendered nearly a year after the plea was filed; and we are authorized to infer from this fact, and from the statement made by the judge in his order, that the demurrer was not filed within the time required by the statute, or even at the term of the court next succeeding the filing of the plea. The demurrer only going to the defect in the plea, in that it was not sufficiently full and explicit, a defect which is clearly amendable, we do not think there was any error in overruling the same, although its special grounds may have been well taken. The policy of the law seems to be to settle all these questions with reference to the sufficiency of the pleadings at the first term of the court, which is a wise provision to prevent pleas of surprise growing out of amendments, and continuances of cases at the trial term.

2. In Fisher v. Jones Company, 93 Ga. 717, it was decided that a plea of payment may be supported by parol evidence that promissory notes were delivered and accepted in payment, without producing such notes or accounting for their non-production. It was, therefore, not error for the court to permit the defendant Lee to testify in this case that the defendants had executed their notes and delivered them to the plaintiff in satisfaction of this demand. The witness, however, went further, and testified that the notes were given for $125. This was necessarily going into the contents of the notes, and the notes themselves were the best evidence of the fact as to the amount named therein. We do not mean to say, however, that such an error alone would require a reversal of the judgment; for the material fact was whethér or not the matter had been settled by the giving of notes. If it had been, the amount of the notes was perhaps immaterial to be considered.

3. The defense relied on in this, case was a settlement had by the defendants with the alleged agent of the plaintiff. The •only testimony tending to show the agency was that of the defendant Lee, who stated that Benton said he was the agent of the Brantley Companj’', and witness traded in other instances with Benton as the agent of the Brantley Company. While the cashier of the,bank testified that the “notes were sent to the bank for collection, or some member of the Brantley Company spoke to the witness about the matter,” yet, he further testified that he had no positive recollection of ever seeing any . notes signed by the defendants and payable to the Brantley Company, and also said that if they were sent to the bank for collection, they were returned to the Brantley Company. There is no evidence, then, in the record, showing any express authorify given by the company to Benton to make a compromise or settlement of their claim for the property in dispute; and we think the evidence offered is entirely too indefinite and uncertain to authorize the judge to conclude that it demanded a finding that the plaintiff subsequently ratified the settlement made by Benton with the defendants. The court erred, therefore, in directing a verdict for the defendants, and for this reason the judgment is reversed and a new trial ordered.

Judgment reversed.

All the Justices concurring.