Hobbs v. Citizens' Bank of Wrens

• Decision Date: 22 July 1924
• Docket Number: 15654.
• Citation: 124 S.E. 72,32 Ga.App. 522
• Parties: HOBBS v. CITIZENS' BANK OF WRENS.
• Court: Georgia Court of Appeals

124 S.E. 72

32 Ga.App. 522

HOBBS v. CITIZENS' BANK OF WRENS.

No. 15654.

Court of Appeals of Georgia, Second Division

July 22, 1924

Syllabus by the Court.

Fairly construed, an averment, in an action upon a note, that the defendant executed and delivered the note to the petitioner would imply that the note was payable either to the plaintiff or to bearer, and not that it was payable to a third person. This is so even under the general rule that a pleading is to be construed most strongly against the pleader.

A promissory note is a negotiable instrument. Civil Code 1910 §§ 4270, 4273; Reed v. Murphy, 1 Ga. 236; Lynch v. Goldsmith, 64 Ga. 42 (1).

A promissory note being negotiable by the law merchant, it is not necessary in a suit thereon to aver or prove that it was founded upon a consideration. A consideration will be presumed, unless the contrary is made to appear. Purcell v. Armour Packing Co., 4 Ga.App. 253 (3), 61 S.E. 138 and authorities therein cited. See, also, Jones v Winstead, 186 N.C. 536 (1), 120 S.E. 89.

Under the ruling in paragraph 1 above, it sufficiently appeared by the petition in this case that the plaintiff was the owner of the note upon its execution and delivery. There is no presumption that the plaintiff did not continue to own it merely because it was a negotiable instrument. Where title to property, even a promissory note, is shown to have been at one time in a certain person, his ownership is presumed to continue until the contrary appears. Coleman v Rice, 105 Ga. 163, 31 S.E. 424; Russell v. Morris, 134 Ga. 65 (2), 67 S.E. 404; Sasser v. Byrd, 8 Ga.App. 824, 70 S.E. 157; Culpepper v. Culpepper, 18 Ga.App. 182 (2), 89 S.E. 161; Branch v. American Agricultural Chemical Co., 22 Ga.App. 52 (2), 95 S.E. 476.

Mere lapse of time short of the period fixed by the statute of limitations as a bar to a suit on a note will not of itself (that is, in the absence of other circumstances) raise a presumption of payment. Milledge v. Gardner, 33 Ga. 397 (1), 401; Tumlin v. Guest, 31 Ga.App. 250 (2), 120 S.E. 442. "Payment is an affirmative defense which should be set up and proved by the defendant." Christian v. Bryant, 102 Ga. 561 (1), 27 S.E. 666; Armour v. Bluthenthal, 9 Ga.App. 707 (3), 712, 72 S.E. 168; Douglas v. Stephens, 27 Ga.App. 485 (2), 488, 108 S.E. 833; Lanier v. Huguley, 91 Ga. 791 (1), 793, 18 S.E. 39; Haywood v. Lewis, 65 Ga. 221 (2).

Under the rulings made above, it sufficiently appeared, as against objection in the nature of a general demurrer, that the defendant was indebted to the plaintiff on the note upon which the action was brought, although there was no express averment of such indebtedness.

All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party is liable and bound to pay them; if payable on demand, from the time of the demand. In case of promissory notes payable on demand, the law presumes a demand instantly, and gives interest from date. Civil Code 1910, § 3434. Bills, notes, or other paper, payable on demand, are due immediately. Civil Code 1910, § 4292.

No answer having been filed, the present action was marked in default at the return term. Prior to verdict and at a subsequent term the defendant filed written objections to the rendition of any verdict against him, because, as averred therein, the petition failed to set forth a cause of action. See Kelly v. Strouse, 116 Ga. 872 (5), 43 S.E. 280; O'Connor v. Brucker, 117 Ga. 451 (3), 43 S.E. 731. He has excepted to the action of the court in striking such pleading and to the direction then of a verdict against him, the same being for principal, interest, and attorney's fees. Held:

(a) The defendant, as the plaintiff in error, is certainly in no better position than he would have been if excepting to the overruling of a general demurrer. The test of the sufficiency of the petition as against a general demurrer is whether the defendant can admit all the allegations contained therein, and at the same time escape all liability. Citizens' & Southern Bank v. Union Warehouse Co., 157 Ga. 434 (7), 122 S.E. 327.

(b) The overruling of a general demurrer does not adjudicate that the petition is good in every part, or that the plaintiff is entitled to recover the entire sum claimed, but that the petition is not wholly bad. Georgia Railway & Electric Co. v. Town of Decatur, 29 Ga.App. 653 (7), 116 S.E. 645; New Zealand Fire Ins. Co. v. Brewer, 29 Ga.App. 773 (5), 116 S.E. 922. A pleading of that nature is properly overruled, if any part of the petition sets out a legal cause of action. See Port Wentworth Terminal Corp. v. Leavitt, 24 Ga.App. 650 (1), 101 S.E. 766. Striking it is the equivalent of overruling it.

(c) Accordingly, since a cause of action was set forth as to principal and interest, the judgment of the trial court striking the pleading designed to prevent any verdict and judgment being rendered against the defendant and attacking the petition as a whole will not be reversed, "whether or not the recovery of attorney's fees was unauthorized under the pleadings in the case." If so much of the judgment as awards attorney's fees was unauthorized, proceedings to amend the judgment or vacate it in part might lie, whereby that which was good might be preserved, and that which was bad might be removed; but, where part is good and a part bad, and the motion was an attack upon the judgment as a whole, the motion was properly overruled or dismissed. This decision affirming the judgment of the court below is not to be so construed as to have the effect of precluding the plaintiff in error from instituting appropriate proceedings for the purpose of having the judgment amended by striking therefrom so much thereof as awards attorney's fees against the defendant, if, upon the hearing of the application to amend, it should appear that judgment for attorney's fees was unauthorized. Shahan v. Myers, 130 Ga. 724, 61 S.E. 702.

(d) As to the sufficiency of the averments for the recovery of attorney's fees, see Rawleigh Medical Co. v. Burney, 22 Ga.App. 492 (1), 96 S.E. 578.

Error from Superior Court, Warren County; E. T. Shurley, Judge.

Action by the Citizens' Bank of Wrens against F. A. Hobbs. Judgment for plaintiff, and defendant brings error. Affirmed.

B. F. Walker, of Wrens, for plaintiff in error.

L. D. McGregor, of Warrenton, for defendant in error.

BELL J.

The Citizens' Bank of Wrens, Ga., a corporation, filed suit in the superior court of Warren county against F. A. Hobbs upon five promissory notes. The petition contained five counts, one for each note. To neither count was there attached any copy of the note sued. The first count was as follows:

"(1) That the said F. A. Hobbs is a resident of Warren county, Ga.

(2) That the said F. A. Hobbs did upon the 11th day of November, 1920, execute and deliver to your petitioner his promissory note for the principal sum of $553, the same being due upon demand with interest at the rate of 8 per cent. per annum.

(3) That your petitioner has demanded of the said F. A. Hobbs the payment of the above-described promissory note, and payment has been refused.

(4) That the above-described note contained a provision that if said note was collected by suit or placed in hands of an attorney for collection, the defendant would pay 10 per cent. attorney's fees,

together with said principle and interest; that on the 30th day of August, 1923, petitioner did deposit in the United States mail, with sufficient postage thereon, and did register the same, addressed to the said F. A. Hobbs, a notice in writing that it was the intention of the petitioner to bring suit on said note to the

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