Belmont Farm v. Dobbs Hardware Co.

• Decision Date: 15 February 1906
• Citation: 53 S.E. 312,124 Ga. 827
• Parties: BELMONT FARM v. DOBBS HARDWARE CO.
• Court: Georgia Supreme Court

53 S.E. 312

124 Ga. 827

BELMONT FARM v. DOBBS HARDWARE CO.

Supreme Court of Georgia

February 15, 1906

Syllabus by the Court.

The taking of a promissory note for an amount due on an account which is the basis of a mechanic's, materialman's and contractor's lien, in the absence of an express agreement, will not, until the note is paid, accomplish an extinguishment either of the account or the lien. But as a condition precedent to final judgment, either upon the account or lien, the note must be surrendered to the maker or accounted for by showing that it is not in any event enforceable against him.

The evidence sustains the verdict, and there was no error in overruling the motion for new trial upon the usual general grounds.

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by the Dobbs Hardware Company against the Belmont Farm. Judgment for plaintiff, defendant brings error. Affirmed.

R. W Holland, for plaintiff in error.

J. Z. Foster, for defendant in error.

ATKINSON J.

The fourth ground of the motion for new trial complains that the giving of the note discharged the lien pro tanto. It is well settled that, in the absence of an express agreement between the parties to the effect that the note shall be an extinguishment of the original debt, that the debt does not become extinguished until the note is actually paid. Hodges v. Smith, 118 Ga. 789, 45 S.E. 617; Brantley Co. v. Lee, 109 Ga. 478, 34 S.E. 574; Jackson v. Brown, 102 Ga. 87, 29 S.E. 149, 66 Am.St.Rep. 156; Norton v. Paragon Oil Can Co., 98 Ga. 468, 25 S.E. 501. There was no such express agreement in this case, and consequently there was no discharge of debt by which a discharge of lien could arise. If the debt remained unextinguished, what else was there to discharge the lien? The note was a mere evidence of debt; it was not the taking of security. The defendant lost nothing by giving it. No payment was ever made. It does not appear ever to have been transferred. The plaintiff held it overdue when the suit was filed, and accounted for it upon the trial by production in court. The evidence fails to disclose an agreement for the discharge or any fact which, in law, would authorize one. Balkcom v. Empire Lumber Co., 91 Ga. 651, 17 S.E 1020, 44 Am.St.Rep. 58. It appearing that the note was past due at the time of the institution of the suit and was produced on the trial, the defendant is protected from any possible...