Martin v. Lamb & Co. , 77 Ga. 252 ( 1887 )

Bleckley, Chief Justice.

There was a note by Lamb & Co., payable to Martin, agent of the Etiwan Phosphate Company. On that note a suit was brought in the name of Martin, agent, for the use of the Etiwan Phosphate Company. A verdict was had for the plaintiff. A motion for a new trial was made on several grounds; among them one of newly discovered evidence, which was that Martin was dead. He was dead, not only at the time the trial was had and the verdict rendered, but at the time the action was brought. The fact was established by affidavits on the hearing of the motion for a new trial. It seems that the death was unknown to the counsel for the defendants until after verdict. There was some trace of information about it, but it was not known with certainty by counsel for either party, or by the defendants themselves. On this ground, and this alone, the presiding judge granted a new trial. Another ground of the motion was that, though pleas of non estfactum and non-partnership were filed, the court ruled that the burden of proof was not changed, and that the defendant pleading these pleas (who was one alone of the alleged partners) would have to go on and establish his defence. Another ground was that the verdict was contrary to the evidence, in that he did establish it.

These grounds were not expressly ruled on by the judge below, so far as appears; he confined his ruling to the ground which relates to the death of Martin; and while we may not be constrained to pass upon more than this ground of the motion, we go through the whole, and rule upon the other grounds also.

1. A promissory note, payable to the order of an agent of a corporation (the principal as well as the agent being specified by name in the body of the note), is, in legal effect, payable to the corporation, and while the agent can maintain an action thereon (Code, §2209), so can the principal. Id. §3257.

2. An action upon such a note by the agent for the use of the principal is virtually an action by the principal, and the death of the agent, before or pending the action, will not affect the suit. The words importing that the agent sues and that the suit is for the use of the principal are surplusage, and may be stricken from the declaration by amendment at any time, whether before or after verdict. Wilson vs. Presbyterian Church, 56 Ga. 554; McLewis vs. Furgerson, 59 Ga. 644. When it was ascertained that the agent was dead, the suit stood thenceforth, for all substantial purposes, as if the principal alone had from the beginning been the party plaintiff on the record.

3. One of the defendants pleaded a plea which he intended to be a plea of non estfactum, so far as he was concerned, and another plea which he intended to be a plea of non-partnership at the time the note was given; but these pleas were sworn to simply to the best of his knowledge and belief; and therein, we think, lies the explanation of the judge’s ruling that the burden of proof was not changed. We are not informed by the record why he so ruled, but we find a good reason for it in the affidavit to these pleas. A plea of non est factum, or of non-partnership, sworn to by the defendant, “ to the best of his knowledge and belief,” does not cast the onus upon the plaintiff, but only entitles the defendant to go to the jury and establish his defence.

Before the constitution of 1868, a plea of non est factum had to be sworn to — not to the best of one’s knowledge and belief, but sworn to. 26 Ga. 649; Code, §2851. So had a plea of non-partnership. (Id. §1898.) That constitution, as a condition to opening actions upon certain contracts to defence, required that the defence should be sworn to* that the plea should be upon oath; and the judges of the superior court by rule 24 (Code, p. 1348) prescribed a form of affidavit-importing that swearing to the best of one’s knowledge and belief shall be a compliance ; but we do not think that this alters the law as to the plea of non est factum, or the plea of non-partnership, with respect to changing the onus. The rule passed under •the constitution is a rule to allow a defendant to come in and prove something himself; it is not a rule for putting the onus of proof upon the plaintiff. We think the law stands as it was before the constitution of 1868, with regard to the sort of plea and the sort of affidavit that will cast the onus upon the plaintiff to establish the execution of his instrument or the existence of the alleged partnership. The 29th rule of the superior court relieves executors and administrators from swearing to pleas of non est factum positively; they may verify by swearing that they have reason to believe and do verily believe. This oath is misrecited in 34 Ga. 435. An affidavit “ to the best of bis knowledge and belief ” commits the affiant to almost nothing. 23 Ga. 480; 58 Ga. 445.

4. The evidence, construed most strongly against the defendant, who was the only witness, warranted the verdict.

So the judgment is reversed, there not being good cause for a new trial, either on the ground the court ruled upon, or any other ground set forth in the motion.

Judgment reversed.