Lee v. Wilmington Sav. Bank

• Decision Date: 07 December 1923
• Docket Number: 14651.
• Citation: 120 S.E. 689,31 Ga.App. 327
• Parties: LEE v. WILMINGTON SAV. BANK.
• Court: Georgia Court of Appeals

120 S.E. 689

31 Ga.App. 327

LEE v. WILMINGTON SAV. BANK.

No. 14651.

Court of Appeals of Georgia, Second Division

December 7, 1923

Syllabus by the Court.

This was a suit on a promissory note, whereby, in accordance with a provision therein, the plaintiff exercised its option to treat the note as past due on account of default in payment of interest. The plea of the defendant set forth: (1) "Prior to said interest coupon becoming due, it was agreed between defendant and plaintiffs, through their agent and attorneys, Tilson & McKinney, that, if said interest was not paid when due, defendant was to pay an additional and valuable consideration for the time taken to pay same beyond time said interest coupon was due." By a proffered amendment, the defendant sought to show that for such indulgence the defendant "was to pay a substantial and agreed upon amount of consideration, and defendant acted upon and is now acting upon said agreement." (2) "After said interest coupon was past due, plaintiffs, through their said agents and attorneys, did waive right to declare the principal sum due and collectible, by ignoring their right to declare the principal sum due for nonpayment of said interest coupon, insisting that defendant pay all or as much as he could, and as fast as he could (telling defendant that they were very anxious to have same paid to avoid criticism), and if he would do so, they would give him time. Plaintiffs, by their said agent and attorneys, after interest was due, did accept part of same, stating, if same was paid, they would waive for a time their rights to declare the principal sum due, for they preferred interest paid to exercise right to foreclose." By a proffered amendment the defendant sought to show that by such conduct plaintiff "recognized defendant's right to pay same in lieu of declaring the principal sum due," and "that plaintiffs have forever waived their right to declare the principal sum due for nonpayment of interest." On objection by plaintiff the amendments referred to were disallowed, and on motion the plea was stricken, and the case ordered to proceed as in default. To these rulings and orders and to the verdict in the plaintiff's favor, the defendant excepts. Held:

"The elements of certainty, mutuality, and consideration are necessary to constitute a valid agreement for an extension of time." 8 C.J. 426 (§ 628); Alston v. Wingfield, 53 Ga. 18 (2), 24; Tatum v. Morgan, 108 Ga. 336, 33 S.E. 940; Holmes v. First Nat. Bk., 19 Ga.App. 810 (2), 92 S.E. 298. The agreement for an extension was therefore fatally defective.

The conduct of the plaintiff in giving the defendant...