Belmont Farm v. Dobbs Hardware Co.

1. The fourth ground of the motion for new trial complains that the giving of the note discharged the lien pro tanto. It is well settled that, in the absence of an express agreement between the parties to the effect that the note shall be an extinguishment of the original debt, the debt does not become extinguished until the note is actually paid. Hodges v. Smith, 118 Ga. 789; Brantley Co. v. Lee, 109 Ga. 478; Jackson v. Brown, 102 Ga. 87; Norton v. Paragon Oil Can Co., 98 Ga. 468. There was no such express agreement in this case, and consequently there was no discharge of debt by which a discharge of lien could arise. If the debt remained unextinguished, what else was there to discharge the lien ? The note was a mere evidence of debt; it was not the taking of security. The defendant lost nothing by giving it. No payment was ever made. It does not appear ever to have been transferred. The plaintiff held it overdue when the suit was filed, and accounted for it upon the trial by production in court. The evidence fails to disclose an agreement for the discharge or any fact which, in law, *829would authorize one. Balkcom v. Empire Lumber Co., 91 Ga. 651. It appearing that the note was past due at the time of the institution of the suit and was produced on the trial, the defendant is protected from any possible liability thereon. See, in this connection, Moultrie Repair Co. v. Hill, 120 Ga. 730. Upon the questions at issue in the case the evidence is conflicting. There being no exception to the charge of the court, it will be presumed that all of the issues were fully and fairly submitted to the jury; and the evidence as a whole being sufficient to support the finding of the jury, and the verdict having received the approval of the presiding judge, his discretion in refusing a new trial will not be disturbed. .

Judgment affirmed.