
    BRANTLEY COMPANY v. LEE et al.
    
    A defense by one sued for a trespass, that he gave his promissory notes in settlement of the claim for damages, is not sufficient to prevent the plaintiff from recovering upon the original cause of action, unless it is shown that the notes have been paid or that thei-e was an express agreement between the parties that the notes should be received by the plaintiff as payment of his claim for damages. The evidence shows that there was no such express agreement in this case, but that the understanding of the parties was to the contrary, and that the notes were never paid. The verdict was contrary to law and the evidence, and the court erred in refusing to set it aside.
    Argued November 11,
    Decided December 9, 1899.
    Complaint in trover. Before Judge Bennett. Ware superior court. April term, 1899.
    
      Hitch & Myers, for plaintiff.
   Simmons, C. J.

The Brantley Company sued W. P. Lee and H. J. Reed, administrator of D. H. Lee, for a trespass upon its land. W. P. Lee pleaded that he had made a settlement with the agent of the Brantley Company by giving his notes for $125. There was a dispute as to the authority of the agent to take the notes, but the view we take of the case renders it unnecessary to decide that question. The evidence clearly shows that, when the notes were received by the agent, the understanding between the parties was that unless the first note was paid, the agent’s principal would insist upon the $200 claimed. Lee did not dispute this. He failed to pay the first note, or any of them. The Brantley Company brought suit on its original cause of action. The jury returned a verdict in favor of the defendants. Motion for new trial was made, and overruled by the court, and the plaintiff excepted. It is well settled in this State, by the code and by the decisions of this court, that a note given by the debtor is not an extinguishment of the original cause of action, unless there is an express agreement by the parties that it should be received as payment. The code provides that “promissory notes are not payment until themselves paid.” There being no express agreement between the parties that these notes would he received by the agent of the Brantley Company as payment of the amount claimed against the Lees, simply taking these notes, presenting them for payment, or placing them in a bank for collection did not extinguish the original cause of action unless the .notes themselves had been paid. The notes not being paid, and no express agreement having been made that they should be received as payment, the verdict was contrary to law and evidence, and the judge erred in refusing a new trial. Norton v. Paragon Oil Can Co., 98 Ga. 468, and cases cited in the opinion of Mr. Justice Lumpkin.

Judgment reversed.

All the Justices concurring.  