Mason v. Blayton, 44204

• Decision Date: 29 January 1969
• Docket Number: No. 2,No. 44204,44204,2
• Citation: 119 Ga.App. 203,166 S.E.2d 601
• Parties: , 6 UCC Rep.Serv. 359 Fred MASON v. Jessie B. BLAYTON, Sr
• Court: Georgia Court of Appeals

Page 601

166 S.E.2d 601

119 Ga.App. 203, 6 UCC Rep.Serv. 359

Fred MASON v. Jessie B. BLAYTON, Sr.

No. 44204.

Court of Appeals of Georgia, Division No. 2.

Jan. 29, 1969.

Rehearing Denied Feb. 14, 1969.

Syllabus by the Court

The pleadings and the admissible evidence submitted in support of and in opposition to the motion for summary judgment authorized a grant of the motion and it was error to deny it.

Joe Jones Trucking Company, Inc. leased from Fred Mason certain equipment under a written contract whereby monthly rentals of $1,500 were to be paid. On November 4, 1967, the company was two months in arrears with the rental payments and Mason informed its president, Jessie B. Blayton, Sr., that unless the arrearages were paid immediately suit would be instituted for the collection thereof. Blayton asked Mason to withhold the bringing of suit until November 6, 1967, assuring Mason that the company would then be able to make the payment. Mason was unwilling, without more, to defer the bringing of suit, and Blayton then issued his personal check for $3,000 to Mason to cover the arrearage, which Mason agreed to hold and to forbear the bringing of suit until November 6. When Joe Jones Trucking Company failed to pay the rentals on November 6, Mason deposited Blayton's check, but Blayton had stopped payment on it and the check was returned by the bank. Thereupon Mason brought suit against Blayton on the check. Blayton answered, setting up as his defense that the check had been issued on the condition that it was to be void if Joe Jones Company did not pay the arrearages on November 6, 1967, that the obligation for which the check was given was that of Joe Jones Trucking Company, defendant not having incurred any obligation of any kind to plaintiff, and that the check was without consideration.

Plaintiff moved for summary judgment, attaching his affidavit setting out the facts as to the lease, the arrearage in rentals, the demand therefor, the threat to sue, the request of Blayton, the company's president, for forbearance until November 6, and his issuance of the check sued on, to be used if Joe Jones Company did not pay the arrearages by November 6, and its failure to do, the deposit of the check, Blayton's stopping of payment and its return by the bank.

Defendant filed his response, admitting the execution and delivery of the check and the refusal of the bank to honor it because of his stop payment order, but asserted that the check was issued with the understanding that when Joe Jones Trucking Company accumulated sufficient money in its account to pay the arrearages he would issue and send to Mason its check for the $3,000 and thereupon Mason was to return Blayton's personal check, but that if Joe Jones Company did not have $3,000 in its account on November 6, 1967 he, Blayton, would stop payment on his personal check.

The motion for summary judgment was denied and plaintiff appeals, the trial judge having certified the judgment for review.

Richard D. Flexner, Haas, Holland, Freeman, Levison & Gibert, Atlanta, for appellant.

W. M. Mathews, Jr., Atlanta, for appellee.

EBERHARDT, Judge.

We reverse. A check executed and delivered is a contract in writing by which the drawer contracts with the payee that the bank will pay to the latter or his order the amount designated, on presentation. Haynes v. Wesley, 112 Ga. 668(2), 37 S.E. 990, 81 Am.St.Rep. 72. Code Ann. § 109A-3-104. '(T)here is little difference between a check and a demand note. Both are acknowledgments of indebtedness and an unconditional promise to pay.' Diemar & Kirk Co. v. Smart Styles, Inc., 261 N.C. 156, 134 S.E.2d 134. It imports a consideration. Deal v. Atlantic C.L.R. Co., 225 Ala. 533, 538, 144 So. 81, 86 A.L.R. 455. 'It is elemental that a check is a written contract to be performed at the place where is located the banking house or place of business of the person on whom it is drawn.' Permenter v. Bank of Green Cove Springs, (Fla.App.) 136 So.2d 377, 380. 'The drawer of a check has the right, at any time prior to acceptance by the bank, to stop its payment. (Citations.) However, his revocation of the bank's authority to pay the check does not discharge his liability to the payee or holder. 10 C.J.S. Bills & Notes § 35 (pp. 455, 456). The situation becomes the same as if the check had been dishonored and notice thereof given to the drawer. Flynn v. Currie, 130 Me. 461, 157 A. 310; Annot., 14 A.L.R. 562.' Diemar & Kirk Co. v. Smart Styles, Inc., 261 N.C. 156, 134 S.E.2d 134, supra.

Defendant's contention that there was no contract in writing, as required by the Statute of Frauds, to bind him to answer for the debt of Joe Jones Trucking Company is without merit. His check was sufficient.

The defendant, admitting the execution and delivery of the check, asserted in his answer that it was 'without consideration moving from plaintiff to defendant.' It is not necessary that the consideration move from the payee to the drawer of a check. It is sufficient if there is some benefit or inconvenience to the creditor or payee. Nalley Land & Investment Co. v. Merchants & Planters Bank, 187 Ga. 142, 145, 199 S.E. 815. 'If there be a valid consideration for the promise, it matters not from whom it moves; the promisee may sustain his action, though a stranger to the consideration.' Code § 20-306. It matters not from whom the consideration flows, Archer v. Kelley, 194 Ga. 117, 125, 21 S.E.2d 51, or that it may flow to some third party. Read v. Gould, 139 Ga. 499(4a), 77 S.E. 642.

Forbearance to sue on an obligation that is due is a valid consideration sufficient to support a contract. Holsomback v. Caldwell, 218 Ga. 393, 395, 128 S.E.2d 47; Langford v. Milwaukee Ins. Co., 101 Ga.App. 92, 95, 113 S.E.2d 165; Greenberg v J. C. Bradford & Co., 112 Ga.App. 746, 146 S.E.2d 119. The agreement to forbear must be for a specific period of time, Ballentine Motors of Georgia v. Nimmons, 93 Ga.App. 708, 92 S.E.2d 714, but the agreement here to forbear until November 6, 1967 supplied this requisite. Even one day...