Bennett v. Adel Banking Co., 54411
| Decision Date | 18 November 1977 |
| Docket Number | No. 2,No. 54411,54411,2 |
| Citation | 241 S.E.2d 23,144 Ga.App. 282 |
| Parties | Wayne BENNETT v. ADEL BANKING COMPANY |
| Court | Georgia Court of Appeals |
William Waugh Turner, III, Nashville, for appellant.
Griffis & Thomas, Virgil D. Griffis, Adel, for appellee.
Adel Banking Company, the appellee, sued the appellant to recover on an unpaid promissory note. The appellant raised the affirmative defense of fraud. At a pre-trial hearing the judge overruled appellee's motion to strike appellant's defense for being insufficient as a matter of law. Twenty days later the trial judge entered an amended pre-trial order in which he again overruled appellee's motion to strike. He also awarded the appellee a partial judgment on the pleadings for the principal and interest due on the note. The judge reserved for trial the issue of whether appellant was liable for appellee's attorney fees. At trial without a jury, final judgment was entered for appellee for the principal amount, interest, and attorney fees.
1. The trial judge did not err in granting appellee a partial judgment on the pleadings for the principal and interest due on the note. The appellant alleged fraud on the part of appellee's president as his defense to payment. Specifically, the appellant maintains that he would not have borrowed $1,000 from the appellee in December if appellee's president had informed him that he was not going to renew the following January a private business contract with him.
The personal business transactions between appellant and appellee's president provide no defense to appellant's obligation to pay the note at maturity. See Bank of Lenox v. Webb Naval Stores Co., 171 Ga. 464, 156 S.E. 30 (1930). Furthermore, the note contained an unconditional promise to pay (Code Ann. §§ 109A-3-104(1)(b)); 109A-3-413(1); and parol evidence cannot be used in order "to inject conditions on the obligation which are not apparent from the face of the note." Tatum v. Bank of Cumming, 135 Ga.App. 675(1), 218 S.E.2d 677 (1975). See also Cairo Banking Co. v. Hall, 42 Ga.App. 785(3), 157 S.E. 346 (1930). When appellant was unable to establish a valid defense to payment, the appellee was entitled as a matter of law to recover on the note. Code Ann. § 109A-3-307(2). See Tatum v. Bank of Cumming, supra, Division 3.
2. Appellant contends the trial judge erred in entering sua sponte a partial judgment on the pleadings for appellee. There is neither a transcript nor a stipulation of the pretrial hearing included in the record on appeal. The trial judge has certified to this court, however, that although he ". . . cannot recall positively that the plaintiff (appellee), Adel Banking Company, orally moved for judgment on the pleadings in those express words, the court is of the opinion that such a motion was in effect so made and that both counsel so understood and argued as if such a motion was before the court." The judge also expressly denied that he entered the judgment sua sponte. In the absence of any evidence to the contrary Touchton v. Stewart, 229 Ga. 303, 190 S.E.2d 912 (1972). See Moody v. Mendenhall, 238 Ga. 689(4), 234 S.E.2d 905 (1977). We find no error in the trial court's procedure.
3. The trial judge denied the request of appellant's counsel that he be permitted to use a hand-held recorder to record the trial for his own use. The only issue argued at trial was appellant's liability for attorney fees. Under our decision in Davey v. City of Atlanta, 130 Ga.App. 687(1), 204 S.E.2d 322 (1974), the trial judge's refusal was error. Nevertheless, we do not find that the appellant was harmed by this error since no issue is raised on appeal which requires a review of the evidence introduced at trial; thus, a recording of the trial would not have benefited appellant's counsel in preparing for appeal. This enumeration of error is without merit.
4. The appellant cites as error the fact that the trial judge admitted documentary evidence in violation of a local court rule. Because...
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...v. Hindman, 175 S.C. 436, 179 S.E. 494 (1935); Conran v. Yager, 263 S.C. 417, 211 S.E.2d 228 (1975). See also Bennett v. Adel Banking Co., 144 Ga.App. 282, 241 S.E.2d 23 (1977). Even assuming, for purposes of summary judgment, the existence of the oral, collateral agreement, Ray and Edwards......
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...of law to recover on the note. Code Ann. § 109A-3--307(2). See Tatum v. Bank of Cumming, supra, Division 3." Bennett v. Adel Banking Co., 144 Ga.App. 282, 283, 241 S.E.2d 23. The portion of the charge under review is adjusted to the evidence and states a correct principle of 2. The second c......
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...OCGA § 11-3-307. So does the parol evidence rule, which precludes enforcement of such oral agreements. See Bennett v. Adel Banking Co., 144 Ga.App. 282, 283(1), 241 S.E.2d 23 (1977). It may not be avoided on the theory of a confidential or fiduciary relationship between Richards and the ban......
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