Geer v. Grow
| Decision Date | 27 November 1923 |
| Docket Number | 14530. |
| Parties | GEER v. GROW. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a promissory note payable on May 1, 1921, contained a stipulation that, if the maker was unable to pay it at maturity, it was to be divided into two notes, one to be payable "in the fall of 1921," and the other "in the fall of 1922," and where the payee filed a suit upon the original note in April, 1922, the defense that a part of the obligation had not matured before the filing of the suit was not maintainable, where the maker only showed that he was unable to pay the original note at maturity. He should have proved further that he gave or tendered the new notes in compliance with the condition precedent to his right to enforce the extension agreement.
Error from Superior Court, Miller County; W. V. Custer, Judge.
Action by R. W. Grow against W. I. Geer. Judgment for plaintiff, and defendant brings error. Affirmed.
W. I Geer, of Colquitt, pro se.
R. W Grow, of Colquitt, in pro. per.
R. W Grow, the payee, brought suit against W. I. Geer, the maker to the April term, 1922, of the superior court of Miller county, upon a promissory note dated October 14, 1920, due May 1 after date, but containing a stipulation as follows:
Geer filed a defense setting up that under the conditions of the note only one-half of it had matured, and that the plaintiff was not entitled to recover the remainder in the present action. A verdict was found for the plaintiff for the full amount sued for; Geer excepted to the overruling of his motion for a new trial.
Upon the trial the plaintiff testified that on the failure of Geer to pay the note at maturity he demanded the new notes, one to be payable in the fall of 1921, and the other in the fall of 1922. The defendant testified that he was unable to sell his peanuts for enough to extinguish the note, and was unable to pay it at maturity. Some, if not all, of the peanuts had been destroyed by fire in the warehouse. While he emphatically denied that the payee had ever demanded the execution of the new notes, he did not show that he had ever tendered them. Both parties appear to have construed the instrument as providing that if the new notes were executed they would become due in the "fall of 1921" and the "fall of 1922," respectively.
If the construction of the contract is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred. Civil Code 1910, § 4268 (4). Conditions may be precedent or subsequent. In the former the condition must be performed before the contract becomes absolute and obligatory upon the other party. Civil Code 1910, § 4224. In case of concurrent...
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