Citizen and Southern Nat. Bank v. Morgan, 53749
| Decision Date | 19 May 1977 |
| Docket Number | No. 53749,No. 1,53749,1 |
| Citation | 142 Ga.App. 337,235 S.E.2d 767 |
| Parties | The CITIZEN AND SOUTHERN NATIONAL BANK v. C. R. MORGAN. * |
| Court | Georgia Court of Appeals |
Lawton & Karpf, Spencer Lawton, Jr., Savannah, for appellant.
W. David Sims, Richard C. Metz, Savannah, for appellee.
This case involves a suit on a note (conditional sales contract motor vehicle) with reference to the purchase of an automobile which was transferred and assigned to the bank by the selling dealer. The plaintiff, The Citizens & Southern National Bank, sued Morgan, the defendant, for the balance of the indebtedness due including attorney fees after default, repossession, and private sale of the automobile.
Defendant answered, admitting jurisdiction and the purchase of the automobile (1971 Chevrolet Malibu coupe) which involved the promissory note which was assigned to the bank, but he denied the indebtedness claimed, as well as that he owed any attorney fees. He filed an additional defense that he did not receive adequate and timely notice from the plaintiff that strict compliance with the terms of the conditional sales contract as regards default would be required.
The case came on for trial and the uncontroverted testimony shows that the obligation was established and default admitted. But the deficiency was controverted.
Plaintiff contended that after repossession it had notified the defendant that the repossessed vehicle would be sold, and had notified the defendant that the bank intended to dispose of the collateral, and in the event the proceeds from the sale of this collateral did not satisfy the indebtedness, defendant would be liable for any remaining balance; and that the defendant was entitled to a public sale of the collateral provided he notified the bank by registered or certified mail within the next 10 days of the date of this letter. Plaintiff offered testimony that the vehicle was sold, leaving a balance due; that the defendant continued to pay on this balance until the balance was reduced to $1,007.21 which it seeks to recover in this case. However, the bank admitted that it had sent the deficiency letter by certified mail which was returned to them unclaimed.
The defendant testified that he did not receive such letter; that he owned two automobiles and finding that he was unable to pay on both he had a conversation with an agent of the plaintiff in which it was agreed verbally that he might voluntarily surrender the 1971 Chevrolet Malibu coupe, which was done, and they had an agreement that if defendant gave the car back "they (the bank) wouldn't do anything . . .," albeit this was in answer to a leading question by counsel for defendant, and no objection was made thereto. In addition, on cross examination counsel for plaintiff also asked a leading question of this witness which implied that if the defendant "voluntarily surrendered the car, that the bank would call it even and take no action on the deficiency."
Both parties moved for directed verdict and both motions were denied. The jury then found for the defendant, and plaintiff filed its motion for new trial, as amended which was denied. Plaintiff appeals. Held:
1. Defendant did not, as plaintiff contends, admit a prima facie case because he testified he was advised that upon his voluntary return of the collateral to the bank it "wouldn't do anything to (defendant)" and if he " voluntarily surrendered the car that the bank would call it even and take no action on the deficiency"; that no notice was thereafter received by him, that is, that the bank intended to seek a deficiency in the event the sale of the automobile did not satisfy the indebtedness. Thus there were issues of fact for jury determination as to accord and satisfaction, good faith in the transaction, possible fraud and deceit, as well as the amount of the deficiency. It is not shown here whether the notice of the sale was returned prior to or after the sale, and plaintiff's good faith in the transaction would be for jury determination, considering all the circumstances. See Geoghagan v. Commercial Credit Corp., 130 Ga.App. 828, 831, 204 S.E.2d 784. The court did not err in denying this motion for directed verdict.
2. A corporation, necessarily, speaks through its agents. Consequently, the testimony of the defendant as to the arrangement whereby he surrendered voluntarily the automobile to the bank and its agent agreed, "if (he) would give the car back they wouldn't do anything to (defendant)," that is seek a deficiency, which agreement was made with the agent and employee of the bank who had also allegedly sent the notice of proposed sale and who had witnessed the voluntary surrender form. This was not hearsay testimony but between the parties involved...
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Kemp v. Bell-View, Inc.
...cannot complain of the giving of a charge that was specifically requested by the complaining party." Citizens & Southern Nat. Bank v. Morgan, 142 Ga.App. 337, 340(3), 235 S.E.2d 767 (1977). Secondly, the gravamen of Chadwick is that "[t]he defense of accident in this state is to be confined......
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Simpson v. Reed
...charge, we find any error, assuming error exists, to present no ground for reversal. See generally Citizens, etc., Bank v. Morgan, 142 Ga.App. 337, 340(3), 235 S.E.2d 767 (1977). 6. Appellant has failed to demonstrate how a proper charge on the defendant's burden to prove any affirmative de......
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Slocum v. First Nat. Bank of Atlanta, 58880
...prior to or after the sale, plaintiff's good faith in the transaction is a question for the trier of fact. C. and S. Nat. Bank v. Morgan, 142 Ga.App. 337, 235 S.E.2d 767 (1977). However, plaintiff has been held not to have carried its burden of proof on a motion for summary judgment when it......
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Brown v. C. I. T. Corp., 57934
...there are other issues in the case which would make a fact question as to the amount of the deficiency. Citizens & Sou. Nat. Bank v. Morgan, 142 Ga.App. 337, 235 S.E.2d 767 (1977). But if the condition precedent of commercial reasonableness is not met on the foreclosure sale no recovery is ......