
    Jackson et al. v. McCalla, executrix.
    Argued June 23, 1909.
    Decided January 13, 1910.
    Equitable petition. Before Judge Worley. Elbert superior court. September 16, 1908.
    
      Z. B. Rogers, for plaintiffs in error.
    
      George G. Grogan and Thomas J. Brown, contra.
   Atkinson, J.

Mrs. M. A. McCalla, as the administratrix of the estate of J. W. McCalla, deceased, brought a suit in equity against John Jackson as maker, and G. G. Rucker as indorser, of two promissory notes payable to Mrs. M. A. McCalla individually, alleging that the notes were thus made payable by mistake of all the parties, and that they should have been made payable to her as administratrix of the intestate; and prayed to reform the notes so that they would be thus payable. Held:

(a) The petition was not subject to general or special demurrer on any ground presented.

(5) It was competent for the defendant to plead and prove, as tending to show the absence of mistake on the part of the payee, that after the notes were in default the payee retained them and in an individual capacity entered suit thereon in a justice’s court and prosecuted it to an appeal to the superior court and there dismissed the action.

(e) Such suit in the justice’s court would not estop the plaintiff, as administratrix, from maintaining the suit in equity to reform such note.

(d) It was erroneous to strike, on general demurrer, a plea by the maker, setting up that the notes were given, not for a balance due on a general accounting, but only to settle the amount due by the maker to the intestate on a store account; that it was understood', at the time the note was given, that another account between the maker and intestate would be afterwards “straightened out” and a settlement thereof made between the parties; that the latter account had not been “straightened out” and no settlement of the same made; and that when the same is done it will appear that the estate owes the maker a named amount greater than the amount for which the notes were given, and for which a judgment in favor of the maker was prayed.

(e) The plea contained' a great deal of other matter tending to obscure the defense above indicated, and which might have been properly stricken on special demurrer.

Judgment reversed.

All the Justices concur.  