Lunsford v. Ferrell, 33532
| Decision Date | 30 November 1951 |
| Docket Number | No. 33532,No. 1,33532,1 |
| Parties | LUNSFORD v. FERRELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A set-off which had not accrued to the defendant at the time of the filing of the plaintiff's suit was properly stricken on demurrer.
2. The judgment of the court, without the aid of a jury, was authorized by the evidence. (a) It is too late to raise for the first time in brief of counsel in this court the question of whether or not the plaintiff pursued the wrong remedy.
3. To preserve a trial court's ruling on a plea for consideration by this court, exceptions pendente lite must be filed within twenty days and error assigned thereon when the case si brought here by bill of exceptions, or if the bill of exceptions is tendered within twenty days of the ruling on the plea, an exception to the ruling and an assignment of error thereon may be included therein.
4. Parol evidence is admissible to show that a written contract is tainted with usury. (a) A question on which the opinion of the trial court was not invoked and not given will not be considered by this court.
Ellis Ferrell sued Joel Lunsford in the Civil Court of Fulton County for money had and received. The petition, filed on March 6, 1950, alleged in substance: that the defendant, acting pursuant to the power of sale in a loan deed, caused to be sold on October 4, 1949, certain real estate and personal property owned by the plaintiff subject to the loan deed, that the balance on the loan was $2,046.58, that the defendant purchased the property at the sale for $3950, and that the defendant was indebted to the plaintiff in the amount of the difference, to-wit: $1,903.42.
The defendant demurred to the petition on the following grounds: (1) generally on the ground that no cause of action was set forth, (2) specially on the ground that a copy of the loan deed referred to in the petition was not attached, (3) specially to paragraph 7 on the ground that the difference between the sale price of the property and the balance due on the loan is the amount had and received by the defendant and which he has failed and refused to pay to the plaintiff is a conclusion of the pleader, and (4) the defendant included, within the demurrer, a plea that a receiver had been appointed for all of the property of the plaintiff on October 21, 1949 and that only he could prosecute the action.
The defendant also filed an answer, plea and set-off, which: (1) admitted that the balance on the loan was $2,046.58 and that he purchased the property at the sale for $3,950, (2) denied that the plaintiff was entitled to the difference, (3) contended that the plaintiff had no right to bring any action because the court had appointed a receiver of all his property, (4) showed that the defendant is entitled to a credit against the $1,903.42 for certain payments made out of the proceeds, and (5) stated that other offisets would be added by amendment, when the amount was known.
The court overruled the general and special demurrers. No exceptions pendente lite were filed. The plaintiff amended by substituting $1,436.58 for $2,046.58 as the amount due on the loan and by changing the amount sued for from $1,903.42 to $2,513.42. The defendant amended his answer, plea and set-off, by admitting that the balance on the loan was $2,046.58 by denying that it was $1,436.58, by attaching a copy of the loan deed, and by striking the paragraph containing the set-offs and adding a new paragraph containing substantially the same figures and the following new sub-paragraph: 'Payment made to the marshal Civil Court of Fulton County on May 15, 1950 in Suit No. 198915, Civil Court of Fulton County in a foreclosure action brought by American Service Co. against property conveyed by Ellis Ferrell to Mrs. Mary Caldwell by deed to secure debt which is attached hereto as Exhibit 1, the said foreclosure property being also included in the deed under power from Ellis Ferrell to Joel Lunsford dated October 5, 1949 and recorded in Deed Book No. 2446 at page 437, a copy of said deed under power from Ellis Ferrell to Joel Lunsford being attached hereto marked Defendant's Exhibit 2 * * * $860.00.' The plaintiff filed demurrers and motions to strike this amendment to the answer, attacking it on the grounds that it accrued May 15, 1950 and thus was not in existence when the plaintiff filed suit on March 6, 1950, that the property was not specifically identified, that there is no allegation that the property purchased at the foreclosure sale was the property conveyed in the deed to secure debt, that the power of sale does not contain the power to sell the personal property and hence the defendant did not obtain title to the property, and that the paragraph failed to set forth a cause of action. The court ruled that the power of sale must be strictly construed and that it did not cover the personal property, and paragraph 4(i), which contained the $860 set-off was stricken from the answer. The defendant properly preserved this point by filing exceptions pendente lite to this ruling, within the time required by law. On the trial of the case, the court overruled the plea of receivership. No exceptions pendente lite were filed. The plaintiff amended his prayer by praying for interest from October 4, 1949 to the date of the judgment. The case proceeded to trial, without the intervention of a jury, and resulted in a judgment for the plaintiff. The findings of fact included the finding that the note for $2600 with interest at 6% per annum from date was usurious, the borrower receiving only $2000, and the note being payable in 60 monthly installments of $43.34 each with interest thereon at 6% per annum from date. The court also found that the plaintiff had already paid $563.42 on the note, and that the plaintiff was indebted to the defendant on several items of set-off in the total amount of $968.90. The court allowed the payment of $563.42 as credit against the note, leaving $1,436.58 due, and ruled that the plaintiff was entitled to recover the $3,950 bid in at the sale, less the $1,436.58 balance on the loan and the $968.90 allowed as set-offs, such amount being $1,544.42. The defendant's motion for a new trial on the usual general grounds and two special grounds was overruled. To this judgment the defendant excepted and the case is here on such exceptions.
William F. Lozier, Atlanta, for plaintiff in error.
Houston White, Emory A. Schwall, Attlanta, for defendant in error.
WORRILL, Judge (After stating the foregoing facts).
1. In the statement of facts we did not set forth in detail the specific items of set-off claimed by the defendant since the record shows that all of such items except that of $860 and that for state and county taxes for the years 1945, 1948, and 1949 in the total sum of...
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