Blackshear Mfg. Co. v. Harrell

• Decision Date: 03 December 1940
• Docket Number: 13343.
• Citation: 12 S.E.2d 328,191 Ga. 433
• Parties: BLACKSHEAR MFG. CO. v. HARRELL
• Court: Georgia Supreme Court

12 S.E.2d 328

191 Ga. 433

BLACKSHEAR MFG. CO. v. HARRELL

No. 13343.

Supreme Court of Georgia

December 3, 1940

Rehearing Denied Dec. 13, 1940.

Memory & Memory, of Blackshear, for plaintiff in error.

Heath & Heath, of Douglas, and S. Thos. Memory, of Blackshear for defendant in error.

Syllabus Opinion by the Court.

ATKINSON Presiding Justice.

1. The assignment of error based on the general grounds of the motion for new trial are abandoned.

2. Under the Code, § 20-1004, 'bank checks and promissory notes are not payment until themselves paid'; and a promissory note taken in renewal of a previous note, or for a balance due on such note or an account, will not, until that note is actually paid, operate as a payment, or operate as an accord and satisfaction or novation extinguishing the previous note or indebtedness, unless the parties so agree. Belmont Farm v. Dobbs Hardware Co., 124 Ga. 827, 53 S.E. 312; Standard Cooperage Co. v. O'Neill, 146 Ga. 235, 237, 91 S.E. 82. Under the defense of the maker that a last note, given in transactions between the debtor and creditor, had been fraudulently obtained, and in the absence of any evidence of agreement between the parties that such note should operate as a payment, accord and satisfaction, or settlement of a previous note and alleged indebtedness, the mere taking of the last note would not extinguish the previous obligation or any previous indebtedness.

3. Where, as in this case, after delivery of a last note by the debtor to the creditor, the creditor returned the previous note to the debtor with the mere statement, 'a new note having been given us, we are returning your old note,' and the debtor attacked the last note as having been fraudulently obtained, the fact that the old note had ben surrendered and was in the hands of the debtor would not prevent the creditor from recovering on the old note or indebtedness, unless the new note, or the old note or indebtedness covered thereby, had been actually paid. Hodges v. Smith, 118 Ga. 789(3), 45 S.E. 617; Standard Cooperage Co. v. O'Neill, supra; Schneider Marble Co. v. Knight, 37 Ga.App. 646(4), 141 S.E. 420; Adams & Co. v. Skipper, 9 Ga.App. 123, 126, 70 S.E. 692.

4. One having the right to sue upon a promissory note, or upon the original indebtedness such as a book account or an account stated, may properly join these causes of action in one complaint; the two claims are not inconsistent, and no election is required if only one recovery is sought. 8 Am.Jur. 537, § 915, and cit.; 4 Am.Jur. 524, §§ 38, 39. But where a party sues only on a sealed instrument or special contract, without any of the so-called common counts, such as on a quantum meruit or for money paid or had and received, he must recover on the cause of action as laid in his pleading and cannot recover on such an unpleaded common count. Frierson v. Fincher, 134 Ga. 113, 67 S.E. 541; Seaboard Air-Line Ry. Co. v. Henderson Lumber Co., 28 Ga.App. 391, 111 S.E. 220, and cit.; 4 Am.Jur. 530, 531, §§ 45, 47; 7 C.J.S. Assumpsit, Action of, p. 132, § 26 c. Nothing was held to the contrary in Strickland v. Parlin & Orendorf Co., 118 Ga. 213(1, 4), 44 S.E. 997, where suit was brought on a contract of purchase of certain goods and on promissory notes given, in accordance with the contract, as evidence of the indebtedness thereon; and it was held that fraud in procuring the notes was no defense when the notes amounted to no more than a compliance with the previous valid contract, and the debt itself had never been paid. Nor in the previous decision of this case (Harrell v. Blackshear Mfg. Co., 187 Ga. 531, 1 S.E.2d 440) was anything held contrary to the preceding rulings. The original cross-action of the defendant creditor merely declared upon a last note, which the debtor attacked as fraudulent, without in any wise setting forth or seeking to recover on the previous note and alleged indebtedness included in the last note. The case was tried and submitted to the jury on the issues of fraud and payment as affecting the right to recover only on the last obligation. It was decided in this court on the pleadings as laid and the issues as tried and submitted. After the reversal of the judgment in favor of the creditor, for the first time it sought by express amendment of its cross-action to recover on the previous note and indebtedness; and for the first time the questions raised by this amendment and the evidence and charges as related thereto are now before this court. Accordingly, as to such questions, the previous decision is not the law of the case.

5. The plaintiff debtor filed an equitable petition against a creditor to enjoin a sale under a security deed and to cancel the deed, which purported to secure a note dated November 10 1930, for $175.80 and other existing and future indebtedness, on the ground that this note and all indebtedness...