Love v. Perry

• Decision Date: 12 December 1916
• Docket Number: (No. 7337.)
• Citation: 90 S.E. 978,19 Ga.App. 86
• Parties: LOVE. v. PERRY.
• Court: Georgia Court of Appeals

19 Ga.App. 86

(19 Ga.App. 88)

90 S.E. 978

LOVE.

v.PERRY.

(No. 7337.)

Court of Appeals of Georgia.

Dec. 12, 1916.

(Syllabus by the Court.)

Error from Superior Court, Irwin County; E. D. Graham, Judge.

Action by J. L. Perry against J. R. Love. Judgment for plaintiff, and defendant brings error. Affirmed.

Quincey & Rice, of Ocilla, for plaintiff in error.

McDonald & Bennett, of Fitzgerald, for defendant in error.

WADE, C. J. [1] The note sued on was for the purchase price of a certain horse, and expressly excluded any warranty by the vendor as to the age, health, life, or soundness of the property therein described, and further provided that, except the warranty of title, "no other warranty shall be implied as against the vendor." The court therefore did not err in striking the plea which attempted to set up the defense that the horse which was the consideration of the note sued upon did not measure up to the parol representations made by the seller at the time of the sale. All such representations were necessarily merged into the written contract, which expressly negatived by its terms the existence of any warranties whatever as to the age or soundness of the animal sold, and as to its suitability for the purposes and uses intended by the defendant.

The note sued upon bears date April 14, 1914, and stipulates that:

"——after date, I, we, or either of us, whether maker, security or indorser, jointly and severally, promise to pay to J. L. Perry or order ——dollars, value received, with interest from date at eight per cent. per annum until paid. This note is given for the purchase price of the following property, this day purchased from J. L. Perry"—describing the property.

In the upper left-hand margin of the instrument the figures "$90" appear, and nowhere else in the instrument is there any reference to the amount contracted to be paid. The general rule appears to be that figures on the margin of a promissory note will not authorize a recovery thereon, if the amount is left blank in the body of the instrument.

"The fact that an amount is stated in the margin of a note, both in words and figures, does not dispense with the necessity of expressing clearly in the instrument the amount for which it is made, and though the figures are in the margin of the paper, so long as the amount is left blank in the body of the instrument, there can be no recovery thereon." 1 Daniel on Negotiable Instruments (6th Ed.) 132.

While marginal figures may be referred to for the purpose of removing the ambiguity, where the amount contracted to be paid is defectively stated in the body of an instrument, "the weight of authority * * * seems to be in favor of the view that the sum named in the margin is generally the limit of the amount with which a bona fide holder may fill up the blank; and that until so filled the instrument is incomplete, and no recovery can be had upon it. The reason for this rule is that one of the essential requisites of a bill or note is that the amount for which it is made must clearly be expressed in the instrument, and, as the marginal figures are not generally regarded us a part of it, but are intended as a convenient index, and as an aid to remove ambiguity or doubt in the instrument itself, they cannot supply the omission to insert the amount in the body of the instrument, where a blank has been left for that purpose. The blank in such an instrument is presumably intended to be filled with something, and, until that something has been added, the instrument is not complete. It is not invalid simply because it is incomplete. It creates certain rights and obligations, and, when properly filled up by a bond fide holder, may be enforced at law, or, if left blank by mistake, in equity." 3 R. C. L. pp. 893, 894, § 80.

See, also, Hollen v. Davis, 59 Iowa, 444, 13 N. W. 413, 44 Am. Rep. 688, and note; Chestnut v. Chestnut, 104 Va. 539, 52 S. E. 348, 2 L. R. A. (N. S.) 879, 7 Ann. Cas. 802, 1 Ann. Cas. 612, note.

The following cases, however, support the contrary view that a note is complete on its face where the amount is named in figures in the margin, although a blank for the amount is left in the body of the instrument: Witty v. Michigan Mut. L. Ins. Co., 123 Ind. 411, 24 N. E. 141, 8 L. R. A. 365, 18 Am. St. Rep. 327.

An application of the more general rule, recognized above, would require a reversal of the judgment of the lower court, if therecord did not disclose a state of facts which, under the rules of pleading in this state, operates, in our opinion, to cure the defect in the note sued upon. The petition filed by the plaintiff alleged that:

"On April 14, 1914, J. R. Love executed and delivered to your petitioner his certain promissory note,...