Ford v. Prudential In

• Decision Date: 14 January 1932
• Docket Number: No. 8666.,8666.
• Citation: Ford v. Prudential In, 162 S.E. 382, 174 Ga. 163 (Ga. 1932)
• Parties: FORD. v. PRUDENTIAL INV. CO. et al.
• Court: Georgia Supreme Court

174 Ga. 163

162 S.E. 382

FORD.

v.PRUDENTIAL INV. CO. et al.

No. 8666.

Supreme Court of Georgia.

Jan. 14, 1932.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by E. A. Ford against the Prudential Investment Company and others. From judgment for defendants, plaintiff brings error.

Affirmed.

C. E. Presley, of Atlanta, for plaintiff in error.

Grant & Long, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

HINES, J.

Ford filed his petition against Prudential Investment and its attorneys, in which he made this case: On June 15, 1925, he executed to said company a series of notes, payable monthly, for the sum of $33.80 each, except the last note, which was for $22. These notes were secured by deed to described real estate. They contained an acceleration clause. In January, 1931, petitioner was in arrears in his payments upon six of these notes, and was sued thereon. A settlement of this suit was effected between the parties, whereby petitioner paid to defendant two of his past-due notes and $50 attorney's fees, part in cash and part by note, and by which he agreed to pay one of his notes monthly thereafter. Petitioner has not paid one of these notes each month, but has been paying the same at irregular intervals, and defendant has been accepting payment thereof at such intervals. Such departure from the terms of their contract of settlement constitutes a new contract between the parties. Petitioner has paid and defendant has received money under such departure from the terms of the contract of settlement. Nevertheless defendant has declared all of said remaining notes due, and has elected to proceed to foreclose the security deed without giving him the necessary and required ten days' notice of its intention to rely upon the terms of the agreement. Petitioner is ready, able, and willing to comply with the exact terms of the new agreement. Defendant has advertised the property of petitioner for sale, and will proceed to sell the same, unless restrained. Petitioner tenders into court and to the defendant compliance with the exact terms of the contract entered into at the timeof the settlement of said suit against him. He prays that the defendant be enjoined from selling his property, and for such other and further relief as to the court may seem proper. The petition was presented to the judge on September 1, 1931; and he granted a rule nisi calling upon the defendants to show cause before the judge presiding in the motion...