Glasser v. Decatur Lumber & Supply Co.
| Decision Date | 03 May 1957 |
| Docket Number | No. 36676,No. 2,36676,2 |
| Citation | 99 S.E.2d 330,95 Ga.App. 665 |
| Parties | H. E. GLASSER v. DECATUR LUMBER & SUPPLY COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An assignment of error in a bill of exceptions, complaining of the trial court's overruling a general demurrer to the plaintiff's petition, which is not argued in this court either orally or in the brief of counsel for the plaintiff in error and upon which there is no general insistence, will be treated as abandoned. Code, § 6-1308; Cuthbert Ice Co. v. York Manufacturing Co., 20 Ga.App. 695(2), 93 S.E. 279.
2. "Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review." Godwin v. Hudson, 93 Ga.App. 858(1), 93 S.E.2d 379, and citations. The assignment of error on the judgment of November 9, 1956, in which time was allowed the defendant to amend his answer, comes within the rule stated and is not subject to review.
3. The discharge of an indorser for which provision is made in Code, § 103-205 is not applicable where the principal in the the promissory note resides outside this State; and if the maker resides in this State, in order for the notice for which provision is made in Code, § 103-205 to be effective, such notice must state the county in which the principal resides.
4. A person signing a promissory note on its back without qualification is prima facie an indorser.
5. The trial court, after every issuable defense had been properly stricken on demurrer, did not err in entering judgment for the plaintiff on the promissory notes which were unconditional contracts in writing.
On May 25, 1956, Decatur Lumber & Supply Company brought an action against Midwest & Southern Builders, an Illinois Corporation, and Henry E. Glasser, in which it is alleged that the defendants are indebted to the plaintiff in the principal amount of $550, together with interest at 6 percent, from November 23, 1953, and 10 percent attorney's fees, by reason of a certain series of six promissory notes dated November 23, 1953, which were executed by the defendant corporation through its president, Henry E. Glasser, and which were indorsed individually on the reverse side of the notes by Henry E. Glasser and delivered by him to the plaintiff. Save for the amounts due and the dates when due, the notes are identical and in the following terms:
'227.86
Decatur, Ga., Nov. 23, 1953
'On or before November 27, 1953 after date, I promise to pay Decatur Lumber & Supply Co. or order, two hundred twentyseven & . . . 86/100 dollars . . . Dollars, for value received, at _____ with interest from date at the rate of six percent per annum until paid, and all cost of collection, including ten percent attorney's fees, if collected by law or through an attorney.
'And each of us, whether maker or endorser, hereby severally waives and renounces for myself and family my right to the benefits of the homestead and exemptions provided for by the laws of the State of Georgia, or the United States, as against this debt or any renewal thereof; and each further waives demand, protest and party.
'This note is one of a series of 8 notes, aggregating the amount of $927.86 dollars, as evidenced by 8 notes of even date, owing by me to Decatur Lumber & Supply Co. and it is expressly agreed that time is of the essence of this contract, and should I fail to pay any one of said notes within 10 days from the time the said notes become due, then all of said notes shall become due and collectible at the option of the holder.
'Midwest & Southern Builders (Seal)
By: /S/ Henry E. Glasser (Seal)
President'
The due dates of the notes are: November 27, 1953; December 18, 1953; December 26, 1953; January 1, 1954; January 8, 1954; and January 15, 1954.
On the reverse side of one of the notes, payments aggregating $177.86 are recorded, and the last payment is dated December 14, 1954. It is further alleged that the sums for which suit is brought are pase due and unpaid, and that the plaintiff has demanded payment of the defendants which they have failed and refused to make.
The defendant, Henry E. Glasser, filed a general demurrer to the plaintiff's petition. In his verified answer, the defendant, Henry E. Glasser, alleged the following: (1) Midwest & Southern Builders is an Illinois corporation, and the defendant admits that he personally resides at 1336 Clearview Drive, N. E., Atlanta, Georgia, but denies that Midwest & Southern Builders, Inc., can be served at that address in DeKalb County. (2) The defendant denies that he is personally indebted to the plaintiff in the sums for which suit is brought, or in any sums whatsoever. He alleges further that on March 2, 1954, and for six consecutive months thereafter, the defendant corporation made various payments to the plaintiff, while he, Glasser, was president of the corporation, and that the plaintiff accepted these payments on behalf of the corporation. The last payment was made by the corporation on December 14, 1954. Subsequently, on January 12, 1955, the defendant Glasser wrote the plaintiff a letter stating that the corporation was in default in its payments on the notes, which he signed as guarantor, and demanded that they file suit against the corporation and protect their rights at once. (3) The defendant Glasser denied that the notice of intention to enforce the provisions of the note was given to both defendants; that the notice was directed to him only, and that he is not personally liable for attorney's fees. (4) The defendant Glasser denied that the sums for which suit was brought are past due and unpaid, and that demand had been made upon the defendants and refused. (5) He alleged further that he signed his name on the reverse side of the notes as guarantor, and not as an indorser, and that he cannot, therefore, be sued in the same action as the maker; that he received no consideration or benefit whatsoever for guaranteeing the notes, and that, as guarantor, he is relieved from the liability and obligation of paying the notes by virtue of having notified the plaintiff of the default, failure and refusal of Midwest & Southern Builders to pay the notes to the plaintiff as they became due, and as he requested the plaintiff to enforce its claim and protect its rights against the defendant but the plaintiff failed to do so.
The plaintiff demurred to the answer on the following grounds: (1) The answer does not in its entirety, nor in any of its several parts, set forth any issuable defense to the plaintiff's action. (2) The plaintiff demurs to and moves to strike paragraphs 1, 2, 3 and 4 of the answer on the ground that they constitute no issuable defense to the plaintiff's cause of action. (3) The plaintiff demurs to that portion of paragraph 5 of the defendant's answer which alleges that the defendant, Henry E. Glasser, states that he signed his name to the back of the notes as guarantor and not as indorser and that he cannot, therefore, be sued in the same action as the maker on the ground that this states a conclusion unsupported by any properly pleaded allegations and is insufficient in law as to the defense to the plaintiff's cause of action. (4) The plaintiff demurs and moves to strike the remaining portion of paragraph 5 of the defendant's answer as it sets forth no defense to the plaintiff's cause of action.
By order dated November 9, 1956, one of the judges of the court sustained the plaintiff's demurrer to the corporate defendant's answer, to which no exception is taken, overruled the general demurrer to the individual defendant's answer, and sustained grounds 2, 3, and 4 of the plaintiff's 'special demurrers' to the individual defendant's answer, allowing the individual defendant 15 days within which to amend.
By order dated November 15, 1956, one of the judges of the court entered an order overruling the individual defendant's general ...
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