9319.

#### REYNOLDS *et al. v.*CITIZENS BANK OF MOULTRIE, GA.

Bboxles, P. J.

1. Counsel for the plaintiff hank having stated in their brief1 in this court that they admitted on the trial that the plaintiff bank was not a bona fide purchaser, without notice, before maturity, of the note sued upon, it will not be considered as an innocent purchaser of the note.

2. Before a.transaction can be held to be within an exception to a general rule or principle of law, its right to be so considered should • eleárly appear. A general rule of law is that parol evidence is inadmissible to add to, take from, or vary a written contract. Civil Code (1910), § 4268. There are various apparent exceptions to or modifications of this rule. Such an exception is discussed in *Hansford*v. Freeman, 99 *Ga.*376 (27 S. E. 706). That case is in many respects similar to the instant one. It was there held,'in the first headnote, that “Where a promissory note was signed and delivered by the maker to the payee’s agent, upon an express understanding and agreement that the latter was not to deliver the note to his principal except upon the happening of a certain event, but was to hold the note ‘for both parties’ until it could be ascertained whether or not this event would happen, and where in fact it did not happen at all, and the agent, in violation of the understanding and agreement above mentioned, delivered the note to his principal, sjuch delivery was not effective or binding upon the maker. . Under these circumstances, the agent was, as to the matter of delivery, the mutual agent of both the other parties.” It Will be noted from this headnote, and from the opinion (p. 380), that the material holding there was that par.ol evidence was admissible, under the facts of that case, to disprove the fact of the *delivery*of the note sued upon. In the instant case paragraph “B” of the defendant’s answer did not allege that the note sued upon and the contract of indorsement thereon were not actually *delivered*by the agent of the payee to the payee, or that such agent received-the note with the understanding that he was to *hold*it and not to *deliver*it to his principal until he had obtained the indorsement of another person upon the note. The ruling in the *Hansford'*c.ase will riot be extended to cover the facts of this ease. The court did not err in striking this paragraph of the answer.

j3. The contract of indorsement showed upon its face, from a fair inference, that it was executed for the express purpose of extending the time of payment of the original note so indorsed; and, although the payee may not have been bound to so extend the time of payment '(he not having signed the agreement), yet since the record and a fair inference therefrom discloses that as a matter of fact he did so extend the time of payment (suit upon the note not being brought until after the lapse of the extended time of paym'ent), there was a consideration which actually flowed to the original maker of the note by reason of such indorsement. It was immaterial that the indorsers themselves received no benefit. It follows that the court did not err in striking paragraphs “C” and “D” of the answer.

*165Decided April 9, 1918.

Complaint; from Colquitt superior court—Judge Thomas. ' October 2, 1917.

W. *0. Mather, Shipp & Kline,*for plaintiffs in error.

*Parker & Gibson,*contra.

4. The court did not err in striking the entire answer of the defendants, or in thereafter directing a verdict in favor of the plaintiff.

*■Judgment affirmed.*

*Bloodioorth, J., concurs.*

“ Harwell, J.,

dissenting. Paragraphs “C” and “D” of the plea of the defendants Reynolds and Booker, the indorsers, set up the following as a defense: “There was no consideration for these defendants signing said note, these defendants receiving no consideration for so signing said note, the signing of said note by these deféndants being a nude pact. These defendants further say there was no consideration flowing to the original makers of said note, by reason of these defendants signing said note, and there was nothing done by said Battle or plaintiff by reason of these .defendants signing said note that extended the time of payment of said note, or withheld said plaintiff or Battle from taking any legal action thereon.” The indorsement on the note given by Ott to one Battle for the principal sum of $137.50, due October 15, 1916, was as follows: “We, the undersigned, hereby indorse and guarantee the payment of the within note and title as follows: $68.75 on Nov. 1st, 1916, and.balance on Jan. 15, 1917. This August 5th, 1916. [Signed] J. M. Reynolds. W. R. Booker.” In the opinion of the writer, this portion of the plea set up a good defense, and the court erred in striking it. It is true that an extension of the time by the payee or holder to the maker of the note would be a sufficient consideration for the accommodation indorsement by Reynolds and Booker, but whether this was done or not is a question .of fact to be passed on by the jury.

Moreover it appears that the attachment was sued out and the declaration filed for the full amount of the note, prior to the time the balance on the note was payable by the indorsers, which was January 15, 1917. This seems to negative the fact that the payee or holder ever agreed to an extension. The writer is therefore of the opinion that the court erred in striking the portion of the plea above referred to, and in directing a verdict for the plaintiff.