Williamson v. Calhoun , 49 Ga. App. 631 ( 1934 )

Sutton, J.

1. A plea of payment interposed in a suit on a promissory note, which sets up that the plaintiff, the transferee of the note, was the confidential agent, steward, and factor of the defendant maker of the note, and, as such, had in his possession, custody, and management the defendant’s real and personal property, for the purpose of collecting rents, investing them, and otherwise managing and taking care thereof, and had paid the note sued on with the defendant’s funds which he so held, but, instead of procuring the cancellation of the note, had it transferred to him, and was therefore not the holder and owner of the note sued on, the same having been fully satisfied by the plaintiff out of the funds in his possession belonging to the defendant, was not subject to a general demurrer directed to the plea as a whole, and the court erred in striking the entire plea on general dmurrer. Epstein v. Thomas, 15 Ga. App. 741 (84 S. E. 201); Thompson v. Carrollton Bank, 29 Ga. App. 520 (116 S. E. 39); Short v. Jordan, 39 Ga. App. 45 (146 S. E. 31); Vinson v. Garland, 41 Ga. App. 601 (154 S. E. 158); Register v. Southern States Phosphate Co., 157 Ga. 561 (4) (122 S. E. 323). The test of the sufficiency of a plea of payment to withstand a general demurrer is whether the plaintiff can admit all of its allegations and still be entitled to recover. Pullman Co. v. Martin, 92 Ga. 161 (18 S. E. 364); Georgia R. &c. Co. v. Rayford, 115 Ga. 937 (42 S. E. 234). The plaintiff in this case can hardly admit that the note sued on had been paid by him with the defendant’s funds in the manner set out in the plea, and still be entitled to recover.

2. A pleading which sets forth that a contract which the statute of frauds requires to be in writing was entered into, giving its terms, but fails to state whether the contract was in writing or not, is not subject to demurrer on that ground. Draper v. Macon Dry-goods Co., 103 Ga. 661 (30 S. E. 566, 68 Am. St. R. 136). If the contract is of a kind required by the statute of frauds to be in writing, the presumption is that it was in writing. Ga. Fla. & A. Ry. Co. v. Parsons, 12 Ga. App. 180 (76 S. E. 1063).

3. Applying the ruling made by the Supreme Court in the first headnote of the decision in Teasley v. Bradley, 110 Ga. 497 (35 S. E. 782, 78 Am. St. R. 113), the plea alleging that the plaintiff was the brother of the defendant, had charge of and managed her property over a period of years, and had paid the note sued on out of moneys of the defendant coming into his hands by reason of his agency over a period of years, and had it transferred to him instead of having it canceled and delivered to the defendant, was not subject to demurrer upon the ground that the matters set up in the plea, were barred by the statute of limitations or had become stale and could not now be asserted by the defendant in defense to the suit on the note.

Decided September 25, 1934. I. W. Rountree, Guy Alford, for plaintiff in error. A. S. Bradley, Felix 0.. Williams, P. W. Bradley, contra.

4. Applying the rulings above made, the trial court erred in dismissing the defendant’s plea as amended, on general demurrer, and in entering up judgment on the note in favor of the plaintiff.

Judgment reversed.

Stephens, J., eoneurs. Jenkins, P. J., dissents.