Gilford v. Green

• Decision Date: 16 October 1924
• Docket Number: 15647.
• Citation: 125 S.E. 80,33 Ga.App. 1
• Parties: GILFORD ET AL. v. GREEN.
• Court: Georgia Court of Appeals

125 S.E. 80

33 Ga.App. 1

GILFORD ET AL. v. GREEN.

No. 15647.

Court of Appeals of Georgia, Second Division

October 16, 1924

Syllabus by the Court.

A contract providing that on default in payment of one or more of a series of installment notes the remaining notes of the series shall become due and payable operates to mature the entire debt upon the default, and not merely to give the creditor an option to treat the whole debt as due or not.

(a) Where a vendor of land executes to the purchaser a bond for title, and the purchaser executes to the vendor notes for the purchase-money, according to the stipulations and recitals of the bond, the bond and the notes constitute but one contract.

(b) Where in such entire contract there is a clause accelerating the maturity of the notes, the notes may become prematured thereunder, as between the immediate parties, although the clause may be contained only in the bond for title.

A plea in abatement to a suit upon notes, upon the ground that the suit was filed before their maturity, is properly stricken upon demurrer where it appears from the plea that it is based solely upon the facts alleged in the petition, and where it further appears that under such facts the suit was not prematurely brought.

(a) Where a plea in abatement, based on such ground, to a suit for money upon a written obligation, alleges no facts for the abatement, and the conclusions of the pleader are contradicted by the stipulations of the contract sued on, it is subject to general demurrer.

It plainly appears that if the defendant has any right upon the facts alleged in the answer it arises from the plaintiff's breach of a contract subsequent to that upon which the suit was based, and, assuming that such contract and breach appear, a demurrer to the answer was nevertheless properly sustained because of the failure of the answer to allege any amount of damage as a result of the breach.

Error from City Court of Thomasville; W. H. Hammond, Judge.

Suit by Dollie F. Green against D. C. Gilford and another. Judgment for plaintiff, and defendants bring error. Affirmed.

H. H Merry and L. S. Moore, both of Thomasville, for plaintiffs in error.

W. I MacIntyre and J. E. Craigmiles, both of Thomasville, for defendant in error.

BELL J.

Dollie F. Green brought suit against D. C. and Annie Gilford upon notes. The petition alleged that on March 24, 1919 petitioner entered into a written contract, whereby she agreed to sell, and the defendants agreed to buy, a certain tract of land for the consideration of $1,100. The contract was attached to the petition and recited the payment of $50 in cash and the execution by the defendants of 110 promissory notes for $10 each, the first note to become due on May 22 1919, and one note to mature on the 22d day of each month thereafter until the entire series should be paid. It was stipulated in the contract that "upon the failure to pay three notes, the whole debt becomes due." The vendor was bound by the instrument to execute titles on payment of all the notes. The petition further alleged that at the time of the sale a residence was situated upon the lot, which the plaintiff insured to protect her own interest, her security being otherwise insufficient, and that it was subsequently destroyed by fire. Petitioner on May 1, 1922, collected $600, the amount of the insurance carried on the property, from which there remained after deducting $18 paid for the premium, the sum of $582, which the petition alleged "should be credited as a payment as of the date of May 1, 1922." It was further alleged that immediately after the contract of sale the defendants went into the possession of the property, and that they paid 23 of the 110 notes as they became due; "since which time defendants fail and refuse to pay any of the unpaid 87 notes, all of which are now in default and are payable in full because defendants defaulted in the payment of as many as three notes, this maturing all of them as provided in the contract." The prayer was to recover the amount of the 87 unpaid notes, less a credit of $582, as of the date of May 1, 1922. There was no accelerating clause in any of the notes; this appeared only in the sales contract or bond for title.

The defendant filed a plea in abatement as follows:

"First. That according to the terms of the petition filed in this case the amount of $600 collected by the plaintiff should be applied, and was applied, to the payment of the promissory notes sued upon, and therefore it appears that all notes that would have matured up to the date of the filing of the petition have been paid, and that none of the notes sued upon were at the time of the filing of the petition due and payable. Second. The notes sued upon are not due, and the action brought is premature. Third. The notes sued upon, if they be a valid and binding obligation at all, will not become due and payable until July 22, 1926."

The effect of the answer was to admit that none of the 87 notes had been paid, but it was denied that there had been any default. Construing the answer as a whole, it appears, however, that the insistence on the part of the defendant that there had been no default was based solely upon the facts that the plaintiff had collected the insurance amounting to more than the sum represented by the notes mature by their face at the time of its collection, and the further facts alleged in the answer, as follows:

"Fifth. That the building on the said premises and which was insured was the main consideration of the trade, the lot being of very slight value. Sixth. That when the said insurance was collected as mentioned in plaintiff's petition it became necessary for defendants to indorse the check given in payment of the said insurance, and defendants so indorsed said check and delivered the same to plaintiff, and thus permitted her to collect the insurance, upon the understanding and agreement with plaintiff that she would within a reasonable time replace the said building on said premises, and this she has totally failed and refused to do, so that defendants have been forced to procure and provide for themselves continuously since the burning of the said building another home. Seventh. By reason of the foregoing the plaintiff rescinded the contract of purchase and sale, but nevertheless wrongfully retains all of the benefits of the contract, including all payments made by the defendants, their notes, the insurance money collected, and the title to the property. Eighth. Defendants have paid to plaintiff $50 cash at the time of the trade, $230 in notes as they matured, besides the interest on said notes, and have paid the taxes accruing on the property. The total amount of principal and interest paid by the defendants to the plaintiff (including revenue stamps of $2.20) is $297.50."

The defendants prayed judgment against the plaintiffs for this amount.

The court, on demurrer, struck the plea in abatement, and also the answer, and rendered judgment for the plaintiff. The defendants excepted.

1. A contract providing that on default in payment of one or more of a series of installment notes the remaining notes of the series shall become due and payable operates to mature the entire debt upon the default, and not merely to give the creditor an option whether to treat the whole debt as due or not. The debtor owes the creditor the duty of paying the entire amount at once, and the partial performance of this obligation by the immediate payment of a part of the aggregate debt thus due would not in any wise affect the existing maturity of the whole, although...