Customers Loan Corp. v. Jones

• Decision Date: 14 October 1959
• Docket Number: No. 2,No. 37827,37827,2
• Citation: 112 S.E.2d 362,100 Ga.App. 653
• Parties: CUSTOMERS LOAN CORPORATION v. Eddye L. JONES
• Court: Georgia Court of Appeals

Page 362

112 S.E.2d 362

100 Ga.App. 653

CUSTOMERS LOAN CORPORATION v. Eddye L. JONES.

No. 37827.

Court of Appeals of Georgia, Division No. 2.

Oct. 14, 1959.

Rehearing Denied Nov. 12, 1959.

Syllabus by the Court

Where, as here, an instrument is executed under seal by a defendant to a legally constituted lending company and attacked regarding questions as to whether or not usury and other alleged unlawful charges are made, such questions must be presented to a fact finding authority to be determined, and cannot be determined as a matter of law, under the record of this case.

Customers Loan Corporation, brought suit against Eddye L. Jones, alleging that the defendant was indebted to the plaintiff in the sum of $2,038.40, the balance on a note. It appears that on approximately February 20, 1957, the defendant signed a note for $2,496 which incorporated an old note less refunds, interest, fees, insurance, recording costs and cash; that the defendant thereafter made payments on the latter note totaling $457, leaving a balance due of $2,038.40; that the defendant then refused to make any more payments on the note.

The defendant filed a general demurrer to the amended petition. The court sustained the general demurrer and dismissed the petition as amended. It is on this ruling and judgment of the court that the case is here for review.

Larry I. Bogart, Powell, Goldstein, Frazer & Murphy, Lynwood A. Maddox, Atlanta, for plaintiff in error.

Marvin P. Nodvin, Atlanta, for defendant in error.

Moise, Post & Gardner, Allen Post, J. William Gibson, Atlanta, for parties at interest, not parties to record.

GARDNER, Presiding Judge.

It is elementary that a general demurrer cannot be sustained where the petition sets out a cause of action. See Wometco Theatres v. United Artists Corp., 53 Ga.App. 509, 186 S.E. 572. In Watson v. Davis, 97 Ga.App. 378(2), 103 S.E.2d 182, 184, this court said: 'Where the cause of action set forth in the petition was on a sealed promissory note, with a copy of the note sued on attached as an exhibit, and where the copy so attached showed that it was payable in fixed monthly instalments, beginning on June 4, 1955, and payable thereafter on the fourth day of each succeeding month, and where the instrument sued on provided that in the event of a default in any payment the holder could declare the unpaid balance due and payable, and that time was of the essence of the contract, and where the petition sought the recovery of a specific sum of money plus a specified amount as accrued interest, the allegation that the defendant had failed and refused to make any payment on the indebtedness 'since August, 1956,' the petition being sworn to on February 20, 1957, was not subject to demurrer.' In Linan v. Anderson, 12 Ga.App. 735, 78 S.E. 424, this court held that a petition is good against general demurrer where it alleges that the defendant was indebted to the plaintiff, and alleges the original amount of the note, as well as that certain payments were maed and credited. In that case, as in the instant case, the petition had the promissory note attached. See also Equitable Loan & Security Co. v. Waring, 117 Ga. 599(16), 44 S.E. 320, 62 L.R.A. 93, 97 Am.St.Rep. 177 and Slater v. Savannah Sugar Refining Corporation, 28 Ga.App. 280, 110 S.E. 759. In Citizens Bank of Hapeville v. Thompson, 99 Ga.App. 466, 467, 108 S.E.2d 750, 752, this court said: 'In passing on the question as to whether the petition alleged a valid right of recovery against either of the defendants we have considered the established rules that for a petition not to be subject to a general demurrer depends upon whether the defendant can admit all allegations therein and escape liability (Lancaster v. Monroe, 45 Ga.App. 496, 165 S.E. 302), and a petition is not subject to general demurrer unless it is lifeless. Medlock v. Aycock, 16 Ga.App. 813, 86 S.E. 455.'

Proof of violation and proof of compliance are matters addressed to a fact finding body and cannot be determined as a matter of law. In relation to the question now before us, the word, 'knowingly' was defined to mean 'intentionally and designedly' in First National Bank of Blakely v. Davis, 135 Ga. 687, 693, 70 S.E. 246, 249, 36 L.R.A.,N.S., 134. Jobson v. Masters, 32 Ga.App. 60, 122 S.E. 724 set out certain requirements of a petition for a suit on a note such as is here under consideration. The instant case shows compliance with such requirements. Moreover the Jobson case was not before this court on general demurrer.

It must be kept in mind that a general demurrer, as here, admits the allegations of the petition and among the allegations admitted in the instant case we find the following: 'That petitioner is engaged in the business of lending money and is duly licensed under the Georgia Industrial Loan Act; and that the conditions for the operation of said business as provided by law have been fully complied with.' The defendant, having admitted such allegations, cannot contradict same by suggesting matters of defense in the brief. Such allegations must be challenged in an answer, not by way of general demurrer.

The law which we have invoked here insofar as we know or have been able to determine, is followed by many, if not all foreign jurisdictions.

The court erred in sustaining the general demurrers and dismissing the petition.

This record contains a motion on behalf of the defendant to dismiss the writ of error...