J.P. Byrd & Co. v. Marietta Fertilizer Co.

• Decision Date: 15 November 1906
• Citation: 56 S.E. 86,127 Ga. 30
• Parties: J. P. BYRD & CO. v. MARIETTA FERTILIZER CO.
• Court: Georgia Supreme Court

56 S.E. 86

127 Ga. 30

J. P. BYRD & CO. v. MARIETTA FERTILIZER CO.

Supreme Court of Georgia

November 15, 1906

Syllabus by the Court.

To an action against the maker of negotiable promissory notes, a plea that he executed them with the understanding that he was not to be bound, and that the notes were simply security for payments of the proceeds of a sale of an article which the plaintiff claimed had been sold to the defendant, and the notes taken for the purchase price, and the defendant claimed was simply in his possession as the property of the plaintiff to be sold for his account, constituted no defense to the action, when there was no denial that the notes were made and delivered, and no allegation that the understanding or purpose for which the notes were given was evidenced by any writing, or that such understanding was omitted from the notes by fraud, accident, or mistake.

Error from Superior Court, Gwinnett County; R. B. Russell, Judge.

Action by the Marietta Fertilizer Company against J. P. Byrd & Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Atkinson J., dissenting.

F. F Juhan and T. M. Peeples, for plaintiff in error.

D. W Blair, Jas. W. Green, and N. L. Hutchins, Jr., for defendant in error.

COBB P.J. (after stating the facts).

The notes sued on were ordinary promissory notes. Each contained an absolute and unconditional promise to pay, at a stated time, a given sum of money. The plea set up that, at the time these notes were given, it was distinctly agreed that the amount to be paid was not at all events to be the amount stated in them; that is, the defendants were to pay whatever amounts were realized from the sale of the fertilizer which had been shipped to them; and if the sales produced an amount which was less than the aggregate amount of the notes they were only bound to pay that amount. The promises in the writing were to pay stated sums. The real promise, as alleged by the plea, was to pay upon certain conditions other sums which might be less than the amounts specified in the notes. The plea did not allege any fraud, accident, or mistake in making the notes. It did allege a fraudulent alteration of a contract which preceded the taking of the notes; but no fraud was perpetrated at the time the notes were given, so far as the allegations of the plea go, it being distinctly alleged that the notes were signed as they appeared, but with the agreement that they were not to be enforced except as security for the payment of other sums to be realized from the sale of the fertilizer. It seems to us that the plea was a patent effort to vary the terms of a written contract as evidenced by the notes. The writing evidenced a promise to pay certains sums absolutely and at all events. The plea alleged the real contract to be to pay no specified amount, but such amounts as might be realized from the sale of the fertilizer, and no amount to be paid whatever unless there was a sale. There is one contract in the notes, definite and clear. There is another contract set up in the plea, which is entirely different from that which the notes evidence. The case, although not identical, is very similar to the case of Hirsch v. Oliver, 91 Ga. 554, 18 S.E. 354. The language of Mr. Chief Justice Bleckley in the opinion is pertinent here. That learned jurist says: "The plea which sought to contradict the notes by setting up an understanding that the maker was not to be bound, that the notes were executed for a purpose other than that of binding him to pay money--a purpose wholly at variance with their plain tenor and effect, contained no suggestion that the understanding and purpose alleged were evidenced by any writing, or that anything was omitted from the notes by fraud, accident, or mistake. It contained no denial of the making of the notes, but simply sought to run over them and crush them by an alleged contemporaneous understanding or agreement in conflict both with their letter and legal effect. This plea presented no valid defense to the action, and there was no error in striking it." In Dendy v. Gamble, 59 Ga. 434, a surety pleaded that it was well understood by the payee and surety that the latter was not to be liable upon the note; and it was held that this was no defense to the action, the note being an absolute promise to pay, no qualification or modification of its terms in writing being alleged, and no fraud or mistake being set up in the plea. In...