Crisler v. Bank Of Canton

• Decision Date: 17 October 1938
• Docket Number: No. 27046.,27046.
• Citation: 58 Ga.App. 485,199 S.E. 252
• Parties: CRISLER. v. BANK OF CANTON.
• Court: Georgia Court of Appeals

58 Ga.App. 485

199 S.E. 252

CRISLER.

v.BANK OF CANTON.

No. 27046.

Court of Appeals of Georgia,

Division No. 2.

Oct. 17, 1938.

Syllabus by the Court.

Under the evidence and the law applicable thereto, the court did not err in granting a nonsuit.

Error from Superior Court, Cherokee County; J. H. Hawkins, Judge.

Suit by C. M. Crisler against the Bank of Canton to recover overpaid interest on a note. To review a judgment for defendant, plaintiff brings error.

Judgment affirmed.

C. M. Crisler sued the Bank of Canton to recover $441.39 as overpaid interest on a note, and alleged that on February 15, 1937, he made to the bank a promissory note for $10,000 principal, due "By Feb. 15, 1938, " with interest at the rate of seven per cent. per annum until paid, and put up as security to this note 200 shares of stock in the Canton Cotton Mill of the approximate value of $20,000; that three days before June 28, 1937, plaintiff, desiring the release of his cotton mill stock, went to the bank and offered to pay W. S. Elliott, cashier thereof, the principal and interest up to that date, but said officer refused to accept the principal and interest to that date and release the stock, and demanded that the principal and interest on the note to February 15, 1938, be paid; that on June 28, 1937, plaintiff went back to the bank and again demanded the release of his said property on the payment of the principal and interest to that date, and, on refusal of the bank to comply with his demand, he paid the principal and interest on the note to February 15, 1938, in order to obtain the release of his said property, and sued for the alleged overpayment of interest.

The defendant answered, and in substance set up that prior to February 15, 1937, plaintiff owed it approximately $21,-000, which was secured by certain stocks, and plaintiff asked W. S. Elliott, vice president of the bank, to sell certain of this collateral and reduce his indebtedness to $10,000, for which latter amount he desired to make a new note; that Elliott agreed to do this and told the plaintiff he could make the new note due in three, six, or twelve months; that subsequently some of the collateral was sold and plaintiff's indebtedness was reduced to $10,000, and on February 15, 1937, W. S. Elliott, vice-president of the bank, wrote the plaintiff a letter and enclosed a renewal note for $10,000, with the due date left blank, and instructed the plaintiff in the letter that he could fill in the due date of the note for three months, six months, or twelve months; that when the note was returned to the bank by the plaintiff he had written in the due date, "by Feb. 15, 1938, " this not being in accordance with the understanding and agreement the defendant had with the plaintiff; the defendant, through its vice-president, W. S. Elliott, before accepting the note marked out the word "by, " leaving the note with a definite due date of February 15, 1938; that no desire for taking down the collateral was expressed by the plaintiff when he paid the note and he did not give that as his reason for paying it, but defendant did tell him at that time that he would have to pay the interest on the note for a year.

The plaintiff, C. M. Crisler, testified, in substance, that prior to February 15, 1937, he owed the Bank of Canton $19,000, plus interest, and to secure this indebtedness he had up 200 shares of Canton Cotton Mill stock, 100 shares of Coca-Cola stock, and 10 shares of Canton telephone stock; that he told W. S. Elliott, cashier of the bank, to sell the Coca-Cola stock and reduce the indebtedness to $10,000, and that he would make a new note for the amount, and Elliott agreed to do that and said he would renew it for three, six, or twelve months; that the debt was reduced to $10,000 by the proceeds from the sale of the Coca-Cola stock, and Elliott then wrote plaintiff advising him of this and sent him a new note to sign; that "the $10,000 note which he enclosed me with that letter, under date of February 15th, its due date was left blank. It was left blank because Mr. Elliott had advised me before that that Icould make the due date either three months, six months or twelve months. And I believe that was the only discussion, directly or indirectly, that I ever had with Mr. Elliott with reference to the due date of it prior to the time that I signed it. In addition to the discussion he had with me at the time he told me he would renew my note for three, six or twelve months time, he told me in the letter I have identified under date of January 23rd that I could make the new note for three, six or twelve months for $10,000. And so I not only had verbal information that they would accept it and renew my note for $10,000 for three, six or twelve months from date for that rate of interest annually, but I also had written confirmation of that at the time I signed that note As to whether or not then, notwithstanding that information from Mr. Elliott as vice-president of the bank, and notwithstanding he was giving me the option of making it due and payable in three, six or twelve months time, yet I, without any further conference with him, and without any agreement on his part, wrote that word 'by' in there. * * I wouldn't know whether the...