
    Atkinson v. First National Bank of Hawkinsville.
    April 11, 1912.
    Rehearing denied May 14, 1912.
   Evans, P. J.

1. To a suit by the holder of a negotiable note, the maker pleaded, as failure of consideration, that the consideration of the npte was the exclusive right to sell, within certain territory, a mechanical tool manufactured by the payee, and that the payee contracted in writing that he would furnish at a certain price the article contracted to be sold, which was to be in every way equal to and perfect as the sample, or purchase-price would be refunded; that the tool furnished was unmerchantable and not reasonably suited to the uses intended; that he asked the holder to discount the note for him at 50 cents on the dollar, and' notified him that he would not protect the note further than to the extent of 50 per cent, of the note, as it was quite likely that the consideration of the note would partially or totally fail, and urged upon the holder not to buy the note unless he procured it at 50 cents on the dollar; and that the holder agreed to discount the note for the maker at 50 cents on the dollar. Held, that the plea set up no meritorious defense.

2. To authorize the setting aside of a verdict on account of the defendant’s having been providentially prevented from being present at the trial, it must appear that he had a meritorious defense to the action. Peacock v. Usry, 52 Ga. 353. Judgment affirmed.

All the Justices concur.

Complaint. Before Judge Parker. Pulaski superior court. August 15, 1911.

H. F. Lawson, for plaintiff in error.

W. L. & Warren Grice, centra.  