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SIMONTON v. SHAW.

(Circuit Court of Appeals, Fifth Circuit.

December 15, 1917.)

No. 3118.

1. Evidence @=>402 — Quad Agreement Inconsistent with Note.

In the absence of fraud, accident, or mistake, the -maker of a note cannot defeat action thereon by proving a prior or contemporaneous agreement inconsistent within it.

2. Set-Oee and Counterclaim @=>22(2) — Action on Contract — Tort as Set-Ove.

Under the law of Georgia, a tort cannot be set off in an action at law on contract.

*684In Error to the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.

Action by Leslie -M. Shaw, against J. M. Simonton. Judgment for plaintiff, and defendant brings error.

Affirmed.

• Ben J. Conyers and George Gordon, both of Atlanta, Ga., for plaintiff in error.

Owens Johnson, of Atlanta, Ga. (Dorsey, Shelton & Dorsey, of Atlanta, Ga., on the brief), for defendant in error.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER, Circuit Judge.

This was an action by the defendant in error on a promissory note made by the plaintiff in error to one Porter and by the latter indorsed to the defendant in error. The court sustained a demurrer to and a motion to strike so much of the defendant’s answer as undertook to set up a defense to the action. This ruling is assigned as error.

It is not clear, from the averments of the answer, whether what is relied on as a defense is a parol contemporaneous agreement to which the maker and payee of the note were parties, and which was inconsistent with the obligation evidenced by the note, or is tortious conduct of the holder of the note, the plaintiff in the suit, sought to be availed of as a set-off. Whether the defense relied on is regarded as the one kind or the other, the court is not chargeable with error in the disposition made of it. In the absence of fraud, accident, or mistake, the defendant could not defeat the action by proving a prior or contemporaneous oral agreement inconsistent with the written instrument sued on. And under the law of Georgia it is not competent in a court of law to set off a tort in an action on a contract. Green v. Combs, 81 Ga. 210, 6 S. E. 582; Hecht v. Snook & Austin Furniture Co., 114 Ga. 921, 41 S. E. 74.

The judgment is affirmed.

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