Heard v. Tappan

• Decision Date: 10 January 1903
• Citation: 43 S.E. 375,116 Ga. 930
• Parties: HEARD v. TAPPAN et al.
• Court: Georgia Supreme Court

43 S.E. 375

116 Ga. 930

HEARD v. TAPPAN et al.

Supreme Court of Georgia

January 10, 1903

Syllabus by the Court.

1. The principal and surety in a promissory note, being joint and several promisors, may be sued in the county of the residence of either.

2. The evidence being conflicting as to whether any alteration had been made in the note which was the basis of the action, the trial judge committed no error in refusing to exclude the same from the jury. The question as to whether there had or had not been an alteration was one for the determination of the jury.

3. There was no error in ruling out oral evidence which tended to vary the terms of the written contract.

4. The question of the materiality of an alteration alleged to have been made in a written instrument is a question of law to be determined by the court, while the question whether such instrument has been altered is a question of fact to be determined by the jury. The trial judge erred in submitting to the jury whether the alteration claimed to have been made in the note was a material one.

5. The verdict rendered included a named amount for attorney's fees, which were not claimed in the petition. As to the amount so found, such verdict was not authorized.

6. The other grounds of the motion not specifically mentioned do not disclose that error was committed by the presiding judge.

7. No error was committed in overruling the demurrer to the amended plea.

Error from superior court, Greene county; Jno. C. Hart, Judge.

Action by Tappan & Merritt against Columbus Heard and J. A. Ashley. Judgment for plaintiffs, and defendant Heard brings error. Affirmed.

Jas. B Park, for plaintiff in error.

Jos. P Brown and Geo. A. Merritt, for defendants in error.

LITTLE J.

Tappan & Merritt instituted an action in the county court of Greene county against Ashley, of Montgomery county, as principal and Heard, of Greene county, as security, to recover the principal and interest alleged to be due on a certain instrument in writing, which was shown to be in the following words and form:

"Bill of Sale. Georgia, Greene County, $475.00. On November 1st, 1899, we promise to pay Tappan & Merritt, or order, the sum of four hundred and seventy-five dollars, with interest from date at 8 per cent. per annum, together with all costs of collection, including 10 per cent. attorney's fees, said fee being recoverable in accordance with the provisions of the laws of said state; for value received. Each of us hereby waives all right to homestead or exemption for ourselves and families on any property we or either of us now own or may hereafter acquire, as against the payment of this debt, as fully as we are authorized to do under the laws of said state. In order to secure the payment of said sum, with interest, cost of collection, and attorney's fees aforesaid, we hereby sell and convey to said payee, his heirs and assigns, the following property, to wit: One tract of land northeast of White Plains, containing about six acres, bounded on the north by lands of R. Tappan, on west by lands of R. Tappan, on the south by J. R. Marchman's land, on the east by W. P. & U. P. R. R. On the above-described lot is a four-room house. All our crop of corn planted on about (25) twenty-five acres of land, planted and growing on lands of J. A. Ashley, thirteen acres and twelve acres of R. Tappan adjoining land of J. A. Ashley. [ Ten cent internal revenue stamp, duly canceled by J. A. Ashley.] This is not to affect the papers now held against us by said payee, but is for money, supplies, etc., furnished and to be furnished us the present year, and also additional security for the amounts now due by us to said payee, as appears from his books of account and papers held by said payee against us, amounting at this date to $325.00. Should any of said property die or be destroyed, we agree to stand the loss. Said property is now in our possession in said county and state, and we have the right to convey the same; and it is unincumbered by any lien or any other claim whatever, except ***. This instrument is understood and intended to be an absolute conveyance of said property to the payee, his heirs and assigns; the title to which is hereby warranted to said payee, his heirs, and assigns, who have a right to bring and maintain trover or bail trover for said property, without any demand upon us, upon default on our part in the payment of said debt or any part thereof. Witness our hand and seal this 28th day of April, 1899. [ Signed] J. A. Ashley. [ [L. S.] Columbus Heard, Sec. [ L. S.]

Signed, sealed, and delivered in the presence of [Signed] W. M. Williams. J. W. Reynolds, Justice of the Peace."

This case was appealed by consent to the superior court of Greene county. The petition set out the obligation of the defendants separate and distinct from that part of the instrument which conveys to the payees the real and personal property described in the instrument as security for the amounts contracted to be paid. The principal debtor filed no plea to the action. Heard, the security, interposed as a defense to a recovery against him a denial of the allegations charging that he was indebted to the plaintiff. He further set up that the figures 325 and the dollar mark in the twenty-sixth line of the note were inserted in the same without his knowledge or consent; and that plaintiff had received the property described in the note, or the proceeds of the same, from the principal debtor, Ashley; and that the same was sufficient to pay off and discharge the amount promised to be paid in said contract. There was evidence on the part of the plaintiff to the following effect: The instrument in writing was prepared by the plaintiffs and given to the defendant Ashley to procure the signature of Heard as security. The plaintiffs did not see either Ashley, Heard, or the subscribing witnesses sign the same, but Ashley returned the note to the firm as it now appears; that the land described in the note was sold at sheriff's sale under an execution in favor of other creditors of the principal, and was purchased by one of the members of the firm for the sum of $5. It was, however worth $40. The plaintiffs expressed a willingness to have that sum credited on the note. The instrument was never changed or altered, but was in the same form when it was delivered to Ashley as it now is, and the figures and mark $325 were written in the note before it was executed. Ashley was...