While it is well settled that a jury's verdict will be upheld where there is any reasonable evidence to support it, and no error of law appears to have been made on the trial, I do not think that the testimony on behalf of the plaintiff in the present case, when tested by other evidence in the record, is such as to entitle the plaintiff to recover. The note sued on, having been lost, was not in evidence. It is true that the plaintiff and his brother-in-law, Fetzer, out of the sale of whose business the note sued on originated, if at all, testified positively that it was executed and delivered by the defendant, and, despite the denial by the defendant, the jury would be authorized to accept as true the testimony of the other two, except for the fact that the other evidence makes such testimony incredible. Inasmuch as the testimony for the plaintiff was that this alleged note existed only as one of the notes inthe contract for the sale of the Sanitex Cleaners which Fetzer owned, and was not given as a consideration which was additional to that expressed in the contract, it necessarily follows that if the terms of the contract do not evidence such a note, the testimony of the plaintiff and the witness Fetzer is thereby impeached. Code, § 38-1802. The defendant introduced in evidence the contract which was signed by him and Fetzer. It was drawn by an attorney, who testified that each of the parties expressly stated that the consideration was as stated in the contract, and that nothing was said to him about a $350 note. These terms are shown in the contract as $650 cash, $600 in notes, twenty-four at $25 each, and the assumption of a $450 debt owed by Fetzer for some equipment. Neither Fetzer nor the plaintiff denied that such statement was made to the attorney. It is not even contended in *Page 704 the brief of counsel for defendant in error that notes in excess of $600 were executed or promised. It is contended only that one of the notes in the contract was for $350, and the written instrument shows that this is not true. It is not made to appear, or even suggested, that after its execution the contract was modified in any respect. The defendant testified that he paid the full amount of the notes, and all of the twenty-four notes, to the finance company to whom the plaintiff sold them. The execution of a $350 note as part of the contract of purchase might be reconciled under one of three theories: (1) That the note was a consideration separate and apart from those recited in the contract; but the plaintiff did not so assert, and he testified that the note sued on was one of the notes of the contract. The written contract shows such claim to be totally without substance. (2) That after the contract was signed, as to which there is no dispute, it was agreed between the parties that inasmuch as Fetzer owed the plaintiff $350 the defendant should pay that amount to the plaintiff and evidence the same by a note to Fetzer in that sum, but pay to Fetzer only the difference between $600 worth of notes and the note of $350. But there is no such contention as to modification of the contract, and the uncontradicted evidence is that Fetzer was given all of the notes specified in the written contract, that he sold them to a finance company, and that they were all paid by the defendant. If the plaintiff regarded such testimony as false, it would have been a simple matter, if untrue, to discredit the testimony of the defendant by summoning as a witness some proper employee of the finance company in Atlanta, where the case was tried, and to whom the notes were sold by Fetzer and paid by the defendant. (3) That after the execution of the contract the parties agreed that instead of the defendant paying $650 in cash, as stipulated, he would execute and deliver a note for $350, to be paid to the plaintiff although executed to the seller, and would pay to the seller, Fetzer, only the difference of $300 in cash. But, again, no such modification is contended, and the uncontradicted evidence of the defendant is that he paid all of the $650 "in cash money."
Inasmuch as the testimony of the defendant as to making payments under the terms of the written contract was not contradicted, and the only basis of the alleged note of $350 was that it was one of the notes in the contract as part payment for the Sanitex Cleaners, *Page 705 the entire consideration for which was shown to be $1700, and was not given as any other consideration, and the written contract shows that no such note was included therein, I think it should be held as a matter of law that the testimony of the plaintiff in respect to the execution and delivery by the defendant of a $350 note is incredible and set at naught by the very terms of the written contract itself and the other testimony in connection therewith. In the state of the evidence I am of the opinion that the verdict for the plaintiff was not authorized, and that the court erred in overruling the defendant's motion for new trial.