dissenting.
I dissent. In rendering judgment for plaintiff in this case the trial court expressly, and erroneously,* **4 *6found that the checks contained the “to be repaid” language when presented to the defendant. Based on this erroneous finding5 the trial court also found that by accepting the checks so marked the defendant expressly agreed to repay his advances in full and that the source of repayment was not limited to commissions defendant might earn from plaintiff.
“The guiding principles are that findings of fact by the trial court will not be set aside unless they are clearly erroneous (OCGA § 9-11-[52]) and the trial court’s findings of fact are as binding on the parties as a jury verdict. Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6) [(1983]).” Intertrust Corp. v. Fischer Imaging, Corp., *780198 Ga. App. 812, 813-814 (403 SE2d 94) (1991). “The finding of fact by the trial court in non-jury cases will not be set aside on appeal unless they are wholly unsupported by the evidence or are clearly erroneous. [Cit.]” Davis v. Hosp. Auth., 167 Ga. App. 304, 305 (306 SE2d 306) (1983). The trial court’s findings of fact in this case are clearly erroneous, and I believe the judgment must be reversed.
Decided July 16, 1993 — Reconsideration denied July 30, 1993 — Frantz, Sanders & Grattan, Donald B. Deloach, for appellant. Goldstein, Schatten & Perry, Lee S. Goldstein, James H. Greenwood, for appellee.The majority finds no reversible error based in part on the conclusion that the defendant did not exercise due diligence in obtaining the checks prior to trial. Hówever, such a finding necessarily presumes that the defendant was required to anticipate that the notations on the checks had been altered after they were presented to him. There is no reason that the defendant should have anticipated that the checks introduced at trial would be different from the ones which were presented to him by the plaintiff, and thus no reason to conclude he did not exercise diligence in obtaining copies of the can-celled checks prior to trial.
Moreover, I cannot agree with the majority’s conclusion that the trial court’s order may have been supported by other evidence presented at trial which is unavailable to us because we have no transcript of the proceedings. As stated above, the trial court’s judgment for the plaintiff was based on the finding that the “to be repaid” language was placed on the checks when they were presented to defendant. No matter what evidence the court may have had before it, the record shows it relied on an erroneous finding of fact in rendering its judgment for plaintiff. Inasmuch as the trial court’s determination of the ultimate issue to be decided in this case was based on an erroneous finding of fact, I believe the judgment must be reversed.
I am authorized to state that Presiding Judge Birdsong and Judge Blackburn join in this dissent.
In this case, the copies of the checks obtained from plaintiffs bank show that the notation concerning repayment had not been on the checks at the time the checks were presented to the bank for payment. It necessarily and indisputably follows that'the notations had not been placed on the checks when presented to the defendant and that such notations were placed on the checks sometime after they were negotiated but before they were introduced into evidence at trial.
The trial court’s order stated the following: “After reviewing the evidence presented to the Court, the Court finds that the checks which were introduced into evidence [by Plaintiff] did contain the language, “to be repaid” when presented to the Defendant. Consequently, by accepting the checks, the Defendant expressly agreed to repay his advances in full and the source of repayment was not limited to commissions earned for sales on behalf of Plaintiff.” (Emphasis supplied.)