Howard v. Simpkins

• Citation: 70 Ga. 322
• Parties: HOWARD v. SIMPKINS et al.
• Decision Date: 27 August 1883
• Court: Supreme Court of Georgia

70 Ga. 322

HOWARD v. SIMPKINS et al.

Supreme Court of Georgia.

August 27, 1883

February Term, 1883.

[After this case was argued, but before the decision was announced Crawford, J., died, and Blandford, J., was elected to succeed him.]

1. The plea of the general issue having been filed at the first term, to a suit on two promissory notes, pleas that both notes were given for the same consideration, the last being given on the representation that the first was lost, failure of consideration, minority and coverture, may be added by way of amendment.

2. A promissory note payable to order, which stated that it was given for a buggy and harness, " upon the distinct understanding that the title was not to pass" until paid for in full, was negotiable.

( a. ) In the hands of a bona fide holder for value before due and without notice, no defences could be set up to a suit thereon, except non est factum gambling or immoral and illegal consideration, or fraud in its procurement.

( b. ) A promissory note given for a buggy and harness, being absolute on its face, a reservation therein of title by the payee until full payment was not sufficient to put an endorsee for value, before due, on notice of any defence by the maker.

3. The plea of infancy goes to the capacity to contract, and a bona fide holder before due and without notice is not protected therefrom.

( a. ) A buggy not being an article of necessity to an infant, no recovery could be had against him on a note given therefor.

( b. ) Were it otherwise, could he be made to pay its value to any one but him with whom he contracted? Quæ re.

( c. ) That a minor is employed as a clerk, is not such a business as would render him responsible for his contracts under section 2733 of the Code. Were this not so no connection is shown between the purchase of a buggy and the business of clerking.

4. By the common law a married woman could not make a note at all nor could she ratify it during coverture, or afterwards, except on a new consideration.

( a. ) In this state the wife is a feme sole as to her own property, and may contract, except to bind her separate estate by any contract of suretyship, or to assume the debt of her husband, or to pay the same by any sale of her separate estate to his creditor.

( b. ) While a married woman cannot legally become a security for another's debt, yet where she has signed a negotiable note with another, as a joint maker, for the purpose of securing the debt of the latter, and it has been transferred to a bona fide purchaser for value before due and without notice, it is valid, and binds her.

Amendment. Pleading. Promissory Notes. Contracts. Infants. Married Women. Notice. Before Judge EVE. City Court of Richmond County. January Term, 1883.

Reported in the decision.

F. H. MILLER, for plaintiff in error.

F. W. CAPERS, Jr.; HARPER & BROTHER, for defendants.

JACKSON Chief Justice.

The plaintiff brought suit on the two following notes:

" $150.00

AUGUSTA, GA., August 6th, 1881.

On the first of November, we promise to pay to C. Toler, or order, one hundred and fifty dollars, at either bank in the city of Augusta, Ga., for one end-spring top buggy and harness this day delivered to me, upon the distinct understanding that the title was not to pass to me until paid for in full, and he is authorized to take possession of same at any time until fully paid.

H. M. SIMPKINS,

M. L. SIMPKINS."

ENDORSED, " C. TOLER."

" $150.00

AUGUSTA, GA., August 25, 1881.

Sixty days after date, I promise to pay C. Toler, or order, one hundred and fifty dollars, at either bank in the city of Augusta, Ga., for one end-spring top buggy, harness, whip and mat, this day delivered to me, upon the distinct understanding that the title was not to pass to me until paid for in full, and he is authorized to take possession of same at any time until fully paid for.

H. M. SIMPKINS,

M. L. SIMPKINS."

ENDORSED, " C. TOLER."

Plaintiff was endorsee for value before the maturity of the notes, holding them as collateral for a debt due him by the payee. The defence is that the notes are not negotiable so as to shut out the equities between the original parties in favor of a holder for value before due; that both notes were given for the same consideration, the last in place of the first, on the representation of the payee that ha had lost the first; that the consideration had failed, in that the payee had taken back the buggy, under the terms of the contract on the face of the notes; that one of the defendants is a minor and the other surety only, and a married woman, and neither, therefore, liable to pay the debt.

1. These defences were set up by pleas at the trial term, the general issue having been filed at the first term, and plaintiff objected to them for that reason as being too late. They were in time, as amendments to the plea of the general issue.

2. The notes are negotiable. It was so held when the case was here before, ^[*] and our statute is very plain on the subject. The Code, section 2776, declares that any " contract in writing for the payment of money or any article of property, * * is negotiable by indorsement or written assignment, in the same manner as bills of exchange and promissory notes." These notes were made payable to the order of Toler, and when indorsed by him to Howard, the plaintiff, the title passed to him, and they stand as any other promissory notes would in his hands as holder for value before due. The only defences which could be set up to them, then, are prescribed in our Code. Section 2785 declares that " the bona fide holder for value of a bill, draft, or promissory note, or other negotiable instrument, who receives the same before it is due, and without notice of any defect or defence, shall be protected from any defences set up by the maker, acceptor or indorser, except the following: 1. Non est factum ; 2. Gambling, or immoral and illegal consideration; 3. Fraud in its procurement."

Is there notice here to affect this holder? None is pretended, except what appears on the face of the instruments. That only affects a reservation of title to the buggy until the note is paid. It reserves a right to the payee; none to the makers. They bind themselves to pay the money at maturity, in any event. He reserves the title to the buggy as a security until all that becomes due is paid. Such a reservation puts no purchaser of the negotiable instrument on notice of any sort of defence to it, for none is hinted at in the paper. 2 Kelly, 92; 3 Ib., 47; 22 Ga. 246; 25 Ib., 225; 61 Ib., 208.

3. But is not the plea of infancy good? The bona fide holder is not protected against that plea. It is incapacity to contract. 1 Parsons on Bills and Notes, p. 276; also p. 67 n. F., and cases cited. Code, 2729. This rule of common law and of the Code, has not been varied by statute, or by any change of the law as to infants, by any decision of this court.

The consideration of the note is a buggy; not an article of necessity to an infant. Therefore, he is not bound to pay even the value of the note, under section 2731 of the Code, even if he could be made to pay it at all to any one but him with whom he contracted for the necessaries. 10 Johnson, 33; 10 Metcalf, 387.

Nor is he liable under section 2733 of the Code, which enacts " If an infant, by permission of his parent or guardian, or by permission of law, practices any profession or trade, or engages in any business as an adult, he shall be bound for all contracts connected with such profession, trade or business." He was a mere clerk; therefore, he was practicing no trade or profession, and hardly carrying on any business as an adult, in the sense of the statute. That sense is an engagement in business for himself; not the mere fact that he is hired to clerk for others. But even...