Pape v. Woolford Realty Co.
| Decision Date | 20 April 1926 |
| Docket Number | 16752. |
| Citation | 134 S.E. 174,35 Ga.App. 284 |
| Parties | PAPE v. WOOLFORD REALTY CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied June 18, 1926.
Syllabus by Editorial Staff.
Answer to suit on notes, alleging they were given for a loan, but at closing thereof lender retained certain sum as usury and delivered remainder to defendant and because thereof plaintiff was only entitled to recover sum defendant obtained, held not to set up counter demand within Civ. Code 1910, § 4339, plea going merely to justice in part of plaintiff's demand.
Answer to suit on notes alleging they were given for a loan, but at closing thereof lender retained part of loan as usury and delivered remainder to defendant, not setting up a counter demand within Civ. Code 1910, § 4339, held not a plea of set-off, within section 4348, providing that after filing set-off plaintiff may not dismiss action so as to interfere with plea.
While some notes sued on depended for maturity on maker's default in payment of another note of same series, and also on holder's election to declare whole debt due, suit on whole series amounted to such election.
Where filing of suit on entire series of notes amounted to election to declare whole debt due was an undeniable fact, denial of allegation that petitioner elected to declare all of debt due held to raise no issue of fact for jury, nor valid objection that, as to some of notes, suit was premature.
In view of Civ. Code 1910, § 4322, right to exercise option of holder of series of notes to accelerate maturity thereof because of nonpayment of interest, or other default, is not affected by tender that is not continuing and otherwise valid.
Tender after exercise of option to accelerate maturity of a series of notes is immaterial as affecting holder's rights.
Where notes secured by deed to payee are transferred without conveyance of security, transferee may obtain judgment on notes and cause levy to be made on land after reconveyance by grantee, it being immaterial that transferee did not hold title to security.
Indorsement or assignment of bill or note, when sued on by indorsee, need not, in view of Civ. Code 1910, § 4299, be proved unless denied on oath.
Where suit on notes, after striking answer, was in default plaintiff was entitled, in view of Civ. Code 1910, §§ 5539, 5662, to take verdict as if allegations of petition had been proved.
Where plaintiff, on defendant's default in payment of interest sued on entire series of notes, and answer was stricken as failing to set forth valid defense, although suit as to notes not maturing by their own terms was not one on unconditional written contracts, direction of verdict for plaintiff was not violative of Civ. Code 1910, § 6516.
While judge ordinarily may not render judgment without verdict of jury, except in cases within Civ. Code 1910, § 6516, even in cases where verdict of jury is necessary court may direct it where it is demanded by law and facts.
Under Laws 1871, 1872, p. 57, creating city court of Atlanta and amendments thereof, judge is empowered to try case in which trial by jury is not demanded, and where petition is brought and defendant has not answered, or his answer been stricken, he may direct verdict for plaintiff, or himself enter judgment without intervention of jury.
In suit on notes, Court of Appeals cannot adjudicate that amount of judgment was excessive because of certain alleged payments shown for first time in bill of exceptions.
Error from City Court of Atlanta; H. M. Reid, Judge.
Suit by the Woolford Realty Company against H. E. Pape. Judgment for plaintiff, and defendant brings error. Affirmed.
W. A. James and Linton S. James, both of Atlanta, for plaintiff in error.
Madison Richardson, of Atlanta, for defendant in error.
Syllabus OPINION.
1. Where a suit was brought in two counts upon two series of notes, and where, in answer to the second count, the defendant pleaded that the notes therein sued on had been given for a loan in the amount of the notes, but that at the closing of the loan the lender retained a certain sum as usury and delivered only the remainder to the defendant as the borrower, and that because of these facts the plaintiff was entitled to recover only the sum which the defendant had obtained, the plea went merely to the justice in part of the plaintiff's demand, and did not set up a counter demand against the plaintiff for anything. See Civil Code 1910, § 4339. The plea, therefore, was not a plea of set-off, within the meaning of section 4348 of the Civil Code of 1910, which provides that after plea of set-off is filed the plaintiff may not dismiss his action so as to interfere with the plea, except upon certain prescribed conditions. The court did not err in allowing the plaintiff to strike the second count of the petition. In this view it is unnecessary to determine whether the section of the Code last mentioned could apply in any case where the suit is in several counts, and the plaintiff does not seek to dismiss the entire action, but merely moves to strike one of the counts thereof, leaving the suit pending as to the other count or counts.
2. While some of the notes sued on in the first count depended for their maturity upon the maker's default in the payment of another note of the same series, as to which default had been made, and also upon the holder's election thereupon to declare the whole indebtedness due, the filing of the suit upon the entire series amounted to such election. Board of Education of Glynn County v. Day, 128 Ga. 156 (6), 57 S.E. 359. The filing of such suit being an undeniable fact, the defendant's denial of the plaintiff's allegation, "that petitioner elects to declare all of said indebtedness now due and payable," raised no issue of fact for determination by the jury, nor did such denial constitute any valid objection that, as to some of the notes, the suit was prematurely brought. See Andrews Co. v. Dorsett, 29 Ga.App. 321, 115 S.E. 772; Walker v. Jenkins, 32 Ga.App. 238 (1), 123 S.E. 161, and cases cited. Under the record no question is presented as to whether the petition ought to have shown that the plaintiff had elected, before suit, to declare the whole indebtedness due. See, in this connection, Sheffield v. Johnson County Savings Bank, 2 Ga.App. 221 (4) 223, 58 S.E. 386; Blitch v. Brewer, 83 Ga. 333, 9 S.E. 837; Hipp v. Fidelity Mutual Life Insurance Co., 128 Ga. 491 (4), 57 S.E. 892, 12 L.R.A. (N. S.) 319.
3. Whether a mere option in the holder to accelerate the maturity of a series of notes because of nonpayment of interest, or other default, is waived or lost by failure to exercise it before tender of the amount actually due (see 8 C.J. 418), the right to exercise such option would not be...
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