This was a suit on a note, in which the evidence did not demand a finding that the note was executed by the defendant solely as security for a loan to her husband, and did not demand a finding that the note had been paid; and it follows that the evidence authorized the verdict in favor of the plaintiff, the widow and sole heir at law of the payee of the note, and the court did not err in overruling the defendant's motion for a new trial, which was based on the general grounds only.
Phoebe Simmons, as the widow and sole heir at law of Raymond Simmons, brought suit in the Civil Court of Fulton County against Corine Matthews, in which she sought judgment against the defendant on a promissory note executed by the defendant in favor of the plaintiff's husband. The defendant answered, denying that she was indebted to the plaintiff on said note, and alleging that the plaintiff's husband had made loans to V. S. Matthews Sr., who controls and operates the Matthews Cafe on Auburn Avenue in the City of Atlanta; that, when the husband of the defendant failed to properly repay such cash loans, the plaintiff's husband would only lend him the $300 represented by the note upon this defendant signing the note sued on, which the defendant contends is void because given for the debt of the defendant's husband; that the defendant's husband has paid this note in full; and that, because she is not indebted to the plaintiff, said plaintiff is now stubbornly litigious and therefore liable to the defendant in the amount of $100 as an expense incurred by her in employing attorney William A. Thomas to represent her. The jury returned a verdict in favor of the plaintiff, and judgment was entered accordingly. The defendant moved for a new trial, and on December 12, 1952, the motion was overruled, and to this judgment the defendant, Corine Matthews, excepts.
1. The evidence authorized the jury to find that the defendant and her husband, V. S. Matthews Sr., owned and ran jointly the Matthews Cafe, and that this money was borrowed from the plaintiff's husband for use in this business. In fact there is a notation on the note that a refrigerator in said cafe was pledged by the defendant as security. The evidence did not demand a finding in favor of the defendant on the ground that the note was signed to secure a loan to the defendant's husband and therefore was not binding on her.
2. While the evidence was conflicting as to whether the note had been paid, the jury were authorized to find that this note, which bore no credits thereon, had not been paid, and that the plaintiff, as the widow and sole heir of the payee of the note, her husband, was entitled to bring suit and recover thereon.
3. The verdict was not contrary to the law and the evidence because, as contended by the defendant, the jury in rendering it disregarded entirely the unimpeached testimony of Winifred Smith Giddings, a witness for the defendant, to the effect that there had been payments made on the note sued on. There was evidence from which the jury were authorized to find that the note had not been paid. The testimony of the witness referred to was not positive as to whether the money paid in her presence by the defendant's husband to the plaintiff's husband was paid on the note sued on or paid on some other indebtedness.
The evidence for the plaintiff showed that there had been several money transactions between these two, prior to the giving of this note. In these circumstances, we do not think that the principle announced in such cases as A. C. L. R. Co. v. Drake, 21 Ga. App. 81 (4)
(94 S. E. 65), and Turner v. Howser, 82 Ga. App. 88
, 92 (60 S. E. 2d, 505), is controlling here.
It follows that the trial court did not err in overruling the defendant's motion for new trial, based only on the general grounds.