Quinn v. First Nat. Bank Of Fitzgerald
| Decision Date | 20 September 1910 |
| Docket Number | (No. 2,207.) |
| Citation | 8 Ga.App. 235,68 S.E. 1010 |
| Parties | QUINN v. FIRST NAT. BANK OF FITZGERALD. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
1. Bills and Notes (§ 365*)—Actions—Defenses.
In order to let in a meritorious defense, the maker of a promissory note who is sued thereon may show that the plaintiff is not a bona fide holder of the note.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 944; Dec. Dig. § 365.*]
2. Banks and Banking (§ 101*)—ActionsDefenses— Ultra Vires Transfer.
The maker of a promissory note which has been transferred by one banking corporation to another (for the purpose of liquidating the affairs of the corporation originally named in the note as payee) cannot defend upon the ground that the contract whereby the note was transferred was ultra vires. Generally one who is not a party to a contract cannot attack it as ultra vires.
[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 237, 238; Dec. Dig. § 101.*]
3. Usury (§ 100*)—Deduction from Principal Debt and Lawful Interest.
Any payments made upon an usurious debt, even though the suit be upon notes given in renewal thereof (but without purging out the usury), are to be deducted from the principal debt and the lawful interest.
[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 219-234; Dec. Dig. § 100.*]
4. Usury (§ 47*)—Collection of Interest Monthly.
Interest may be collected monthly at the option of the parties, if only interest is collected, and no part of the principal is paid, and if the interest contracted to be paid and actually collected does not exceed the rate of 8 per cent, per annum.
[Ed. Note.—For other cases, see Usury, Cent. Dig. § 100; Dec. Dig. § 47.*]
5. Appeal and Error (§ 1176*)—Disposition of Case—Rendition of Judgment.
The court erred in directing the verdict for the amount returned, though the evidence demanded a verdict for the plaintiff for a smaller amount. For this reason this court will direct a final disposition of the case.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4588-4596; Dec. Dig. § 1176.*]
Error from City Court of Fitzgerald; E. Wall, Judge.
Action by the First National Bank of Fitzgerald against J. H. Quinn. Judgment for plaintiff, and defendant brings error. Affirmed, with directions.
O. H. Elkins, for plaintiff in error.
B. J. Reid and Haygood & Cutts, for defendant in error.
The First National Bank of Fitzgerald sued Quinn on two notes which were payable to the order of the Citizens' Bank of Fitzgerald, and the trial resulted in the court directing a verdict for the plaintiff. The notes were apparently indorsed in blank by the Citizens' Bank of Fitzgerald by J. C. Bush, cashier. The defendant pleaded that title to the two notes was not vested in the plaintiff, and that what appeared to be the indorsement of the Citizens' Bank was merely a receipt for interest; and, if the signature of the cashier was intended to be an indorsement, still the National Bank was not a bona fide holder, because it had notice of the equities in favor of the maker; furthermore, that the effort to transfer the note by indorsement was ultra vires, because the purported cashier was in fact not the cashier, and because the attempted transfer to the Na. tional Bank was with the purpose, on the part of the Citizens' Bank, of illegally liquidating its assets and discontinuing business. These pleas were stricken by the court, but the court allowed evidence upon certain pleas setting up usury. At the conclusion of the testimony, however, the court directed a verdict for the full amount of the note without any allowance for the usury in another note, of which it appeared the notes in suit were renewals.
We think the trial judge erred in striking the pleas, because, as was held in Andrews v. John Church Co., 1 Ga. App. 560, 58 S. E. 130, the defendant had the right to show that the plaintiff was not a bona fide holder of the notes in question, in order to let in a meritorious defense. We think the court erred, also, in directing a verdict, because it is unquestioned that the plaintiff had reserved usury in the first note, of which the subsequent notes were renewals. Inasmuch, however, as it appears from the evidence, as well as from the answer of the defendant, that the payment of the usury is the only defensive matter really presented by the pleadings or the evidence, and as the defendant was permitted to offer his testimony upon this subject, the only effect of a reversal of the judgment would be to send the case back to reduce the finding against the defendant by the amount of interest exacted from him in excess of the legal rate. It is not to the public interest to retard the proper disposition of causes or indulge in needless litigation, and for this reason we will exercise our right of effecting a final disposition of the case...
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