Fisher v. Geo. S. Jones Co

• Decision Date: 26 July 1899
• Parties: FISHER. v. GEO. S. JONES CO.
• Court: Georgia Supreme Court

34 S.E. 172

108 Ga. 490

FISHER.

v.GEO. S. JONES CO.

Supreme Court of Georgia.

July 26, 1899.

CONVERSION BY PLEDGEE—CREDIT ON DEBT— ADMISSIONS IN PLEA—AMENDMENT.

1. The conversion of a promissory note deposited by a debtor with his creditor as collateral security for the payment of the debt does not entitle the debtor to a credit of the face value of the collateral, but only to an amount which represents the actual damage which he has sustained by such conversion.

2. A defendant who has in a plea admitted a prima facie case in favor of the plaintiff for the purpose of obtaining the opening and conclusion in the case, cannot, after having failed to carry the burden thus assumed, make an amendment withdrawing such admission, and thus preclude the plaintiff from the right to rely upon the admission contained in the original plea; and, consequently, where in a given case the defendant failed to carry the burden resting upon him by his admission, there was no error in refusing to allow such an amendment, and in directing a verdict against him.

(Syllabus by the Court.)

Error from superior court, Wilcox county; C. C. Smith, Judge.

Action by the George S. Jones Company against A. K. Fisher. Judgment for plaintiff, and defendant brings error. Affirmed.

Cutts & Lawson, for plaintiff in error.

Geo. S. Jones and Hardeman, Davis & Turner, for defendant in error.

FISH, J. On February 22, 1890, A. K. Fisher gave to the George S. Jones Company a promissory note for $738.52, due nine months after date. This note was secured by a mortgage on "one 40 horse power engine and boiler" and other personal property. Fisher failed to pay the note at maturity, and the mortgage was foreclosed, and execution issued thereon was levied on the boiler and engine on January 3, 1893. To the levy of this execution Fisher interposed an affidavit of illegality, gave a forthcoming bond, and took possession of the property. The affidavit of illegality set up that on October 1, 1890, the defendant, by agreement with the plaintiff, sold to the firm of Wishart, Mayfield & Mobley the engine and boiler levied on for the sum of $800, for which two promissory notes for $400 each, due, respectively, four and six months from the date of the sale, were made in favor of the George S. Jones Company, and turned over to it, and it accepted the same; that in 1891, these notes not having been paid, though long since due, the George S. Jones Company accepted from R. E. Wishart, one of the members of Wishart, Mayfield & Mobley, his individual notes in lieu of the notes given by the firm, and surrendered these notes to the firm, thereby releasing the firm from the payment of the notes. The surrender of these notes and the acceptance of the individual notes of Wishart were done without the consent of Fisher. Subsequently the George S. Jones Company brought suit against Fisher on the note given by him. To this suit the defendant pleaded the facts set up in his affidavit of illegality, and, further, that the plaintiff released defendant from the note and mortgage by a valid written release upon a valuable consideration executed at the time of taking the notes of Wishart, Mayfield & Mobley above referred to. For further plea the defendant alleged that the notes last mentioned were delivered to the plaintiff and accepted by it as collateral security, and that, the plaintiff having released the notes, this operated to release defendant from the payment of his note. By consent, the illegality case and the suit on the note were consolidated, and tried together. Before any evidence was introduced, the defendant, in order to assume the burden of proof, admitted that he executed the note sued on and the mortgage sought to be foreclosed, and that at the time of the commencement of the two suits the plaintiff was the owner of the note and mortgage. At the trial it appeared that the firm of Wishart, Mayfield & Mobley, with the consent of the plaintiff, bought the engine and boiler from the defendant, and in payment thereof executed the notes referred to in the defendant's pleas. It further appeared that, some time after the maturity of these notes, McRae, a traveling salesman of the plaintiff, exchanged these notes for the individual notes of R. E. Wishart, a member of the firm. The firm notes were never turned over to Wishart, though McRae agreed to do so. At the date of the trial they were in possession of the plaintiff. In reference to the execution of the firm notes the defendant testified: "I expected the notes of Wishart, Mayfield & Mobley, of course, to pay my notes, and I expected them not to release me from them until those notes were paid. I wrote this letter saying 'I do not expect you to relinquish your claim on any of the machinery.' That was on October 18, 1890, and before these notes were given. And after the notes were given, and he exchanged them for others, I took the view of it that I was released by that. Of course, he waived no claim until these notes were paid." There was no evidence that the firm of Wishart, Mayfield & Mobley was solvent either at the date of the maturity of the notes or at the time the exchange was made for the individual notes of Wishart. At the conclusion of the evidence the plaintiff moved the court to direct a verdict in its favor, whereupon counsel for defendant offered to amend his plea assuming the burden of proof as follows: "The plaintiff held the said note and mortgage at the time of filing suit, and this defendant does not admit that said note and mortgage were not paid off. Defendant intended to admit only a prima facia case for plaintiff, just as if the note and mortgage had been put in evidence." The plaintiff objected to this amendment on the ground that, having made a solemn admission in judicio to obtain the opening and conclusion, defendant could not change his first amendment at that stage of the case. The court sustained the objection, refused to allow the amendment, and directed a verdict in favor of the plaintiff. The defendant excepted, assigning as error the refusal to allow the amendment and the...