Garner v. Sisson Properties

• Decision Date: 06 September 1944
• Docket Number: 14906.
• Citation: 31 S.E.2d 400,198 Ga. 203
• Parties: GARNER v. SISSON PROPERTIES, Inc.
• Court: Georgia Supreme Court

31 S.E.2d 400

198 Ga. 203

GARNER v. SISSON PROPERTIES, Inc.

No. 14906.

Supreme Court of Georgia

September 6, 1944

Syllabus by the Court.

The allegations of the petition that monthly purchase-money notes aggregating principal and interest were payable 'on or before' maturity over a period of ten years, and that the maker in about three years paid notes equivalent to the original purchase price, and tendered the accrued interest were sufficient, as against general demurrer, to allege a cause of action for cancellation of the remaining notes which represented unearned interest.

Mrs Jessie Lee Garner filed in Fulton superior court, against Sisson Properties, Inc., a petition which alleged substantially the following: 'On July 30, 1940, the petitioner purchased from the defendant a described house and lot in DeKalb County known as 311 Leland Terrace, N.E. Prior to receiving a deed the petitioner entered into a contract with the defendant for the purchase of the property for the price of $3500, upon the following terms: $500 cash and the balance payable monthly with interest at 5 per cent. Pursuant to the contract the defendant on July 30, 1940, executed and delivered to the petitioner a warranty deed conveying the property in consideration of 'ten dollars * * * and other valuable considerations.' Coincidently with the receipt of the deed, petitioner executed 120 monthly notes, all dated July 30, 1940, payable to the defendant 'on or before' maturity, each for the principal sum of $31.25 with interest after maturity at 8 per cent. per annum. At the time of the execution of the notes, the petitioner executed to the defendant a purchase-money deed conveying the property as their security. The petitioner has actually paid and taken up 96 of the notes, aggregating the sum of $3,000, which with the $500 cash payment is equivalent to the original purchase price of $3500. On October 13, 1943, the petitioner tendered to the defendant $232.72, representing the accrued interest on the unpaid balance of $3000, and representing all the interest which accrued at the rate of 5 per cent. per annum on the principal balance from July 30, 1940, until October 13, 1943, and demanded that the defendant surrender the 24 remaining notes, aggregating $750, and also that the defendant cancel the security deed and surrender the same for satisfaction of record. The defendant refused to accept the tender and to surrender the notes and deed. The prayers were: for an injunction to prevent the defendant from changing the status of the notes; for specific performance of the original contract, and to require the defendant to accept the tender and surrender the notes; for general relief; and for process.

The defendant demurred on general and special grounds. On December 22, 1943, the court overruled the general ground, but sustained certain special grounds, and gave the petitioner twenty days to amend by attaching copies of the alleged original sales contract and of the security deed. Other special grounds of demurrer were overruled.

The petitioner filed an amendment, attaching a copy of the security deed and alleging that the original sales contract was in parol.

The defendant renewed its original grounds of demurrer, and in addition demurred to the amendment on the ground, among others, that it seeks to set up an oral contract entered into before the execution of the notes and security deed, and that under the law the writings supersede any oral negotiations of agreement.

On April 11, 1944, the court sustained the defendant's general demurrer and dismissed the action. The exception is to this judgment.

Fraser & Irwin, of Atlanta, for plaintiff in error.

Geo. B. Rush, of Atlanta, for defendant in error.

ATKINSON, Justice (after stating the foregoing facts).

'Written evidence is considered of higher proof than oral; and in all cases where the parties have reduced their contract, agreement, or stipulation to writing, and assented thereto, it is the best evidence of the same.' Code, § 38-205; Roberts v. Investors' Savings Co., 154 Ga. 45(4), 113 S.E. 398; Burgess v. Calhoun National Bank, 154 Ga. 193(1), 113 S.E. 800.

Under the written contract, the petitioner, while owing a purchase-money balance of $3,000, signed 120 notes payable 'on or before' maturity, with one note due every month over a period of ten years, each note representing $25 principal and $6.25 interest, making a total amount of $3750 of which $750 was interest. The question for decision is, when monthly purchase-money notes aggregating principal and interest are payable 'on or before' maturity over a period of ten years, can the maker in about three years pay a sufficient number of the notes to cover the original purchase price and tender the accrued interest, and thereby be relieved from paying the remaining notes representing unearned interest? Or would the payee, after...