Citizens & Southern Nat. Bank v. Williams

• Decision Date: 14 September 1978
• Docket Number: No. 55601,55601
• Citation: 249 S.E.2d 289,147 Ga.App. 205
• Court: Georgia Court of Appeals
• Parties: CITIZENS & SOUTHERN NATIONAL BANK v. WILLIAMS et al.

Page 289

249 S.E.2d 289

147 Ga.App. 205

CITIZENS & SOUTHERN NATIONAL BANK v. WILLIAMS et al.

No. 55601.

Court of Appeals of Georgia.

Submitted April 5, 1978.

Decided Sept. 14, 1978.

McClain, Mellen, Bowling & Hickman, James W. Culbreth, A. O. Bracey, III, Atlanta, for appellant.

Hill, Jones & Farrington, Michael C. Ford, E. Lundy Baety, Atlanta, for appellees.

McMURRAY, Judge.

This case involves a suit for deficiency judgment on a promissory note after default and sale of the corporate defendant's stock of supporting goods, the proceeds of which were applied toward satisfaction of the indebtedness.

The Citizens & Southern National Bank sued Willie A. Williams and Solomon E. Brannan, Inc., the maker of the note, and Solomon E. Brannan and Waymon Sims, Jr. as surety-guarantors, for liability which was limited under their respective separate agreements to $45,000 each of the defendant corporation's indebtedness.

Defendant Sims answered, admitting jurisdiction and execution of the agreement dated September 6, 1973, attached as Exhibit "G" to the amended petition, but he otherwise denied the plaintiff's claim against him. He also filed a number of defenses: (1) repossession and disposal of the collateral by plaintiff without notice and in derogation of his rights to redeem the same or demand a public disposition thereof which bars the plaintiff's right to recover a claim of deficiency against him; (2) no judgment has been obtained against the corporate defendant, no determination made as to the existence of a deficiency, and plaintiff may not proceed in the absence of such determination of liability as to the defendant corporation; and (3) the secured property was not levied upon or disposed of in any commercially reasonable manner, hence there would be no deficiency, if any, if properly disposed of in accordance with law. By amendments to his answer, defendant Sims added an additional defense of (4) disposal of collateral without notice to debtor bars the claim of deficiency; and a counterclaim seeking damages for the wilful and intentional conversion of certain corporate stock of the defendant, valued at approximately $15,000 accruing from his stock as security which was sold and the proceeds retained without strict compliance with Code Ann. § 109A-9 504 (Ga.L.1962, pp. 156, 422). Defendant also sought punitive damages for the wilful, intentional disregard of his property rights in the amount of $50,000, seeking judgment for $65,000.

The corporate defendant (Willie A. Williams and Solomon E. Brannan, Inc.) and defendant Brannan became in default. These two defendants in Williams v. C. & S. Nat. Bank, 142 Ga.App. 346, 236 S.E.2d 16 appealed certain rulings with reference to them including the denial of their motion to set aside the default judgment against them which order denying same was reversed because the trial court failed to assert its discretion in considering same.

The case brought against the multiple defendants had proceeded to trial and judgment in favor of defendant Sims in the amount of $9,000 plus interest and costs. Plaintiff filed its motion for judgment notwithstanding the verdict or in the alternative for new trial which was denied. Plaintiff appeals. Held :

1. The motion to dismiss is denied. Williams v. C. & S. Nat. Bank, 142 Ga.App. 346, 236 S.E.2d 16, supra, is not res judicata or the law of the case here as between the plaintiff and defendant Sims even though the defendants in default appealed directly, and the plaintiff here appealed after denial of its motion for judgment notwithstanding the verdict or in the alternative for new trial. See Brissette v. Munday, 115 Ga.App. 131, 134(1), 153 S.E.2d 606. Further, no appeal has been filed to the denial of a motion to dismiss the appeal filed in the lower court. See Code Ann. § 6-809(b) (Ga.L.1965, pp. 18, 29; 1965, pp. 240, 241; 1966, pp. 493, 500; 1968, pp. 1072, 1073, 1074; 1972, p. 624); Gilman Paper Co. v. James, 235 Ga. 348, 349, 219 S.E.2d 447.

2. The defendant Sims' counterclaim asserted that plaintiff had converted corporate stock (AT&T and IBM) belonging to the defendant, having a value of $15,000 at the time of its sale by the plaintiff and a conversion of the funds to its own use. Defendant Sims, the erstwhile owner, testified that this stock was worth "(r)oughly 65, $7,000," and this was the only testimony as to value in the entire transcript. This testimony did not demand or authorize a judgment for the defendant in his counterclaim. See Hoard v. Wiley, 113 Ga.App. 328, 147 S.E.2d 782. Anyone may testify as to value, "if he has had an opportunity for forming a correct opinion." Code § 38-1709. Value generally is fixed by opinion and may be proven by circumstances. Western & A. R. Co. v. Sellers, 15 Ga.App. 369, 370(2), 83 S.E. 445; Reidsville & S. R. Co. v. Baxter, 13 Ga.App. 357, 358(7), 79 S.E. 187. Value is peculiarly for determination of the jury, but there must be evidence upon which the jury may legitimately exercise their own knowledge and ideas. Code §§ 38-102, 38-1708; Jefferson v. Kennedy, 41 Ga.App. 672(3), 154 S.E. 378; Ferguson v. Bank of Dawson, 50 Ga.App. 604(4), 179 S.E. 236.

3. Since the case is reversed on the sufficiency of the evidence to support the verdict and judgment, no ruling is made on the issue of the amount of the verdict and judgment as found.

4. Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written agreement. Code § 38-501. Craig v. C. & S. Nat. Bank, 142 Ga.App. 474(1), 236 S.E.2d 166. However, parol evidence may be used to show no valid agreement ever went into existence. Heitmann v. Commercial Bank of Savannah, 6 Ga.App. 584, 590(2), 65 S.E. 590; Hansford v. Freeman, 99 Ga. 376, 27 S.E. 706; Moore v. Farmer's Mut. Ins. Assn., 107 Ga. 199, 201, 33 S.E. 65. See also Leverett v. Awnings, Inc., 97 Ga.App. 811(1), 815-816, 104 S.E.2d 686; Williams v. C. & S. Nat. Bank, 142 Ga.App. 346, 350, 236 S.E.2d 16, supra. However, one may always offer parol testimony to show a want or failure of consideration. Butler & Co. v. McCall, 119 Ga. 503, 46 S.E. 647; J. G. T., Inc. v. Brunswick Corp., 119 Ga.App. 719(2), 168 S.E.2d 847; A. D. L. Sales Co. v. Gailey, 48 Ga.App. 798(3), 173 S.E. 734; Lee v. Garland, 208 Ga. 251(1), 66 S.E.2d 223. Indeed, the evidence here shows badges of fraud, albeit same may be constructive fraud. Compare Smith v. Standard Oil Co., 227 Ga. 268(1), 180 S.E.2d 691; Lyon v. Patterson, 138 Ga.App. 816, 227 S.E.2d 423; Deck House, Inc. v. Scarborough, Sheffield & Gaston, Inc., 139 Ga.App. 173, 228 S.E.2d 142; Craig v. C. & S. Nat. Bank, 142 Ga.App. 474, 475, 236 S.E.2d 166, supra. The condition precedent here was the nondelivery of the consideration for defendant Sims' promise to act as surety for the corporation's indebtedness. The debt was already made when he attempted to replace a surety by purchasing the surety's corporate stock and to assume his position in that closed corporation's structure. The evidence was sufficient to authorize a finding by the jury that he...