Peretzman v. Borochoff

• Decision Date: 30 November 1938
• Docket Number: 26839.
• Citation: 200 S.E. 331,58 Ga.App. 838
• Parties: PERETZMAN v. BOROCHOFF et al.
• Court: Georgia Court of Appeals

200 S.E. 331

58 Ga.App. 838

PERETZMAN v. BOROCHOFF et al.

No. 26839.

Court of Appeals of Georgia, First Division

November 30, 1938

Syllabus by the Court.

1. Where the instrument or note is not payable to bearer but is payable to order, there being no blank left for the name of the payee, the payee must be named or indicated therein with reasonable certainty.

2. "Where a blank is left in a bill or note for the name of the payee, there is an implied authority to the holder to fill up the instrument and make it in fact what it was designed to be. If made payable in blank, the person to whom it is negotiated [by the maker] may fill [it] up by inserting his own name; if made payable to the order of the person who shall thereafter indorse it, it is negotiable without any alteration, and may be transferred by indorsement."

3. Where a promissory note not payable to bearer does not contain the name of the payee, but has a blank left therefor if suit be brought on it by a person who alleges and proves that it was delivered to him by the principal maker, and that he then was and still is the legal owner and bona fide holder thereof, he may recover in such a suit without filling up the blank.

4. In a suit on a note in Georgia, it appeared that the defendant, a married woman, signed a note in Florida but left a blank for the name of the payee, "payable to the order of ----------," enclosed the note in a letter to the testatrix, sending jewelry to her to be held as security, and the testatrix thereupon sent to the defendant a check for the amount of the note. By the law of Florida, a wife can not so bind herself, but in Georgia she could contract and sign the note as principal. The laws of Georgia apply, and the wife is liable; for where the note was signed in one State but not completed until accepted in another State, it is made in that other State.

Error from Municipal Court of Atlanta; Clarence Bell, Judge.

Attachment suit by Mrs. Nell B. Borochoff and others, as executors of the will of Mrs. Jennie Borochoff, against Mrs. Ida B. E Peretzman, to recover on note. To review judgment on a verdict for plaintiffs, defendant brings error.

Affirmed.

Winfield P. Jones, of Atlanta, for plaintiff in error.

Geo. & John L. Westmoreland, of Atlanta, for defendants in error.

MacINTYRE Judge.

Mrs Nell B. Borochoff, Mrs. Rose B. Simon, and John L Westmoreland, as executors of the will of Mrs. Jennie Borochoff, instituted attachment proceedings against Mrs. Ida B. E. Peretzman in the Municipal Court of Atlanta upon the ground that the defendant resided without the State of Georgia, and caused said attachment proceedings to be levied upon certain jewelry as the property of the defendant and found in the custody of John L. Westmoreland, one of the plaintiffs. In their petition the plaintiffs allege "that the defendant, Mrs. Ida B. Peretzman, is indebted to the plaintiffs as Executors of the Estate of Mrs. Ida B. Peretzman, in the sum of Four Hundred ($400.00) Dollars, besides interest at the rate of 7% per annum from July 10, 1933, for money loaned to the defendant by Mrs. Jennie Borochoff during her lifetime. That the defendant executed to Mrs. Jennie Borochoff a note dated July 10, 1933, in the amount of Four Hundred ($400.00) Dollars, copy of which note is hereto attached, marked Exhibit 'A' and made a part of this petition," which is as follows: "$400.00 Miami, Florida, July 10, 1933 * * * after date for value received, * * * promise to pay to the order of ---------- Four Hundred and No/100 Dollars, at * * * with interest thereon at the rate of * * * per cent. per annum from * * * until fully paid. Interest payable semi-annually. The maker and indorser of this note further agree to waive demand, notice of nonpayment and protest; and in case suit shall be brought for the collection hereof, or the same has to be collected upon demand or an attorney, to pay reasonable attorney's fees for making such collection. Deferred interest payments to bear interest from maturity at * * * per cent. per annum payable semi-annually. Ida Peretzman (Seal)." The defendant demurred to the plaintiffs' petition on the ground that the note in question has a blank for the payee's name but does not contain the name of a payee, and therefore can not be sued upon as a (negotiable) promissory note. She seems to concede that if the testatrix had filled in her name in the blank, even after delivery, that then this suit could have been maintained. The judge overruled the demurrer and the defendant filed exceptions pendente lite. Th case proceeded to trial and the judge directed a verdict in favor of the plaintiff. The defendant's motion for new trial was overruled and he excepted.

1. "Where the instrument is payable to order, the payee must be named or otherwise indicated therein with reasonable certainty." Code, § 14-208. However, it has been generally held that "where a blank is left in a bill or note for the name of the payee, there is an implied authority to the holder to fill up the instrument and make it in fact what it was designed to be. If made payable in blank, the person to whom it is negotiated may fill up by inserting his own name; if made payable to the order of the person who shall thereafter indorse it, it is negotiable without any alteration, and may be transferred by indorsement." Rich v. Starbuck, 51 Ind. 87. It has sometimes been held that a suit between the original payee and the maker on a note with a blank for the payee's name which had not been filled, could not be sustained; we think however that the sound reasoning for so holding is that there was no averment and no proof that the note was delivered to the original payee, or that the ownership of the note was still in such payee.

The plaintiffs set up the preliminary facts that the note sued on was given by the defendant, the original drawer, for money loaned to the defendant by the testatrix, that the consideration moved from the testatrix to the defendant, that the note sued on was executed in the amount stated in the note by the original drawer, and that at the time of the bringing of the suit the defendant was...