Dye v. Garrett

• Decision Date: 24 March 1887
• Citation: 3 S.E. 692,78 Ga. 471
• Parties: DYE v. GARRETT and another.
• Court: Georgia Supreme Court

3 S.E. 692

78 Ga. 471

DYE v. GARRETT and another.

Supreme Court of Georgia

March 24, 1887

Error from superior court, Richmond county; RONEY, Judge.

Action on three promissory notes.

Const Ga. art. 6, § 4, par. 7, reads: "The court shall render judgment without the verdict of a jury, in all civil cases founded on unconditional contracts in writing, where an issuable defense is not filed under oath or affirmation." The other important facts will be found in the opinion.

Claiborne Snead, William Gibson, and Frank H. Miller, for plaintiff in error.

Foster & Lamar, for defendants in error.

BLANDFORD, J.

Garrett and Latimer brought their action against Dye, upon three promissory notes. This action was filed and commenced in January, 1886. These three notes bore equal date. The first was due on the first of January, 1886; the second, the first of January, 1887; and the third, the first of January, 1888. The declaration, besides giving copies of the notes, alleged that they were all due, by virtue of the covenants in a certain bond for titles set out and annexed to the declaration, to the effect that if the first note was not paid at maturity, then the other two notes should become due. Upon the trial of the case, the court, without a jury rendered a judgment, without the consent of the defendant and, as the record shows, against his consent, in favor of the plaintiffs upon all the notes. The defendant thereupon moved, during the term of the court, to arrest the judgment upon the ground that the court had no power, under the facts alleged in the declaration, and shown upon the face of the pleadings, to render judgment in that case without the intervention of a jury. The court overruled the motion; and this is excepted to, and assigned as error.

It is very manifest to us, on looking at the bond for title, and the covenant in the same, and the notes sued on, and construing the same as an entire contract in writing, that it is not an unconditional contract in writing. It is conditional. The notes falling due on the first of January 1887, and the first of January, 1888, are to become due in the event and upon the condition that the first note is not paid; and there is a fact to be tried which does not appear upon the face of the papers, and that fact is whether or not the first note has been paid. This is a fact the judge could not try. Construing these papers together, it was a condition that the...