Richardson v. C. I. T. Corp.

• Decision Date: 21 October 1939
• Docket Number: No. 27622.,27622.
• Citation: 5 S.E.2d 250
• Parties: RICHARDSON et al. v. C. I. T. CORPORATION.
• Court: Georgia Court of Appeals

5 S.E.2d 250

RICHARDSON et al.

v.C. I. T. CORPORATION.

No. 27622.

Court of Appeals of Georgia,

Division No. 2.

Oct. 21, 1939.

Syllabus by the Court.

1. The petition set forth a cause of action, and the court did not err in overruling all grounds of the defendants' demurrers.

2. The court did not err in its rulings on the plaintiff's demurrers to the pleas and answers of the defendants as amended.

3. Under the law and the evidence the court did not err in directing a verdict against the defendant husband, but erred in directing a verdict against the defendant wife on her plea of suretyship as to a promissory note signed by the husband and herself in connection with the contract of sale, inasmuch as under the law and the conflicting evidence the issue as respects her alleged suretyship should have been submitted to the jury.

4. The court did not err, in respect to the defendant husband, in overruling the motion for new trial, but, as to the defendant wife, erred in not granting a new trial.

FELTON, J., dissenting in part

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

Action on a note and contract by the C. I. T. Corporation against Mary M. Richardson and another. To review an adverse judgment, defendants bring error.

Judgment affirmed as to H. H. Richardson and reversed as to Mrs. H. H. Richardson.

C. I. T. Corporation brought suit against Mary F. Richardson and H. H. Richardson, alleging that the defendants were indebted to it in the sum of $1,412 on a note and contract executed July 6, 1937, to Yar-brough Motor Company of Atlanta, Georgia, and by it sold, transferred, assigned and set over to plaintiff on July 12, 1937, the note being due in instalments of $149.25 each, commencing on August 6, 1937, and the remainder of the instalments being due on the 6th day of each month thereafter until the full balance be paid, with interest from maturity at the highest lawful rate. A copy of the contract and note attached to the petition as an exhibit showed the following material provisions: The contract, signed by H. H. Richardson and Mary F. Richardson as purchasers of a described automobile truck, recited that the truck was sold for a "time price" of $3,725.60. This amount was arrived at by adding to the "cash selling price" of $3,117.30 an amount "per chart" of $608.30, and it was shown that a cash payment of $371.80 had been made and that $667.30 had been allowed as the trade-in value of a used automobile truck, leaving a balance of $2,686.50, payable in eighteen monthly instalments of $149.25 each. The contract provided, among other things, as follows: "If any instalment is not paid in full when due, or if purchaser fails to perform any of his obligations or to comply with any condition of this contract, or if the holder hereof shall deem itself insecure, the full amount unpaid hereunder, including any note given, shall without notice become due and payable forthwith, together with 15% thereof, or at the option of the holder, a reasonable sum, as attorney's fees, if this contract is placed with an attorney. Purchaser agrees in any such case to deliver the property to the holder and the holder may, without any previous notice or demand for performance, and without legal process, enter any premises where the property may be found and take possession thereof and of anything found therein, after which the holdermay at its option make such disposition of the property as it shall deem fit and all payments made by purchaser shall be retained by holder as compensation for the use of the property while in purchaser's possession and not as a penalty; or the property may be sold with or without notice, at private sale or at public sale at which the holder may purchase, and the proceeds, less the expense of taking, removing, holding, repairing and selling the property and less attorney's fees as above provided and the expense of liquidating any liens or claims, shall be credited on the amount unpaid hereunder; or without such sale the fair market value of the property at the time of repossession may be credited upon the amount unpaid; in either event purchaser agrees to pay the balance forthwith as liquidated damages for the breach of this contract; any surplus shall be paid to purchaser." It showed that for a valuable consideration, the receipt of which was acknowledged, Yarbrough Motor Company sold, assigned, transferred and set over the contract to C. I. T. Corporation. In connection with the contract was a promissory note in the sum of $2,686.50, dated July 6, 1937, payable to Yarbrough Motor Company or order, and signed by H. H. Richardson and Mary F. Richardson, the note being payable in eighteen instalments of $149.25 each, with interest from maturity at the highest lawful rate, the first instalment being due one month after date, and the note providing for 15% attorney's fees in case of collection by attorney after maturity. It was alleged in the petition that upon said note there had been credited the following: "September 13, 1937, $149.25; September 20, 1937, $149.25; January 11, 1938, sale of truck $1000, less advertising costs and attorney's fees of $24, $976"; that in accordance with the provisions of the note and by reason of the non-payment of the instalments due October 7, 1937, and subsequently, plaintiff had declared the entire principal balance thereof due and payable and had, as per copy of letter attached to the petition as exhibit B, notified defendants in writing more than ten days before the commencement of the action that suit would be brought on said note returnable to the March term of the municipal court of Atlanta. The exhibit shows that defendants were notified that in the event of suit judgment would be asked for the principal balance due, together with interest and 15% attorney's fees. It was alleged that there remained due and unpaid on said note the sum of $1,412, together with interest at 8% per annum from January 6, 1939, for which judgment was prayed.

To the petition the defendants jointly demurred on the grounds (1) that it set forth no cause of action; (2) demurred to the allegations setting forth the balance due of $1,412 on the ground that the plaintiff and Yarbrough Motor Company charged the sum of $608.30 as interest on the balance of the purchase price of the truck, and that it is at the rate of 41% per annum and is void and should be cancelled and the alleged indebtedness reduced by that amount; (3) demurred to the allegations as to the sale of the truck after it was repossessed on the grounds (a) that the petition did not allege how or in what manner the truck was sold; (b) that the allegations do not show that the truck was sold in any legal manner; (c) that the allegations do not show what was the market value of the truck or that it was sold for its market value; (d) that the statement "less advertising costs and attorney's fees of $24" does not show what part of the $24 was for attorney's fees and the allegations do not show any right to charge the defendants for either advertising costs or attorney's fees in the sale of the truck; (e) that the allegations show no right in the plaintiff to recover attorney's fees; (4) demurred to the allegations as to declaring the entire balance due on the ground that it is not shown when or how the option to declare the full amount due was exercised or when or how defendants were notified of the decision to exercise such option; (5) demurred to the allegations as to the balance due, and how arrived at, and to the exhibits attached, on the ground that it is shown that interest was included in the note until its maturity and that only two-thirds of the time had elapsed when the truck was repossessed and the entire amount declared due, and that defendants are entitled to a credit of the amount of the carrying charges from the date of repossession and from the time the full amount of the alleged balance was declared due and payable; (6) demurred to copy of note and contract attached to the petition as an exhibit on the ground that the part of the contract, "add, per chart, " $608.30, is (a) indefinite and does not show for what purpose the said amount was added; (b) the chart referred to is not attached tothe petition; (c) it is not shown for what purpose the said amount was charged and what items of charge or expense are included therein; (d) no right is shown to recover said amount; (7) demurred to the allegations as to the note providing for attorney's fees and that notice had been given, as per exhibit attached to the petition, that suit would be brought on said note and attorney's fees claimed, the ground of demurrer being that no right to recover attorney's fees is shown.

The defendant H. H. Richardson filed an answer denying the substantial allegations of the petition, and by special plea (par. 6) set up that on or about November 10, 1937, he was forced to return to plaintiff the truck in question, and that at that time it was reasonably worth the' market value of $2,500, and that the plaintiff was obligated to take or sell the same for its market value, and that defendant is not indebted to plaintiff in any sum whatever, but that plaintiff is due him the sum of $112; that (par. 7) the described note and contract provide for and include interest and carrying charges for the full period of eighteen months, and that as the truck was repossessed by the plaintiff after about four months the defendant is entitled to a credit of seven-ninths of said charges, namely $509, which sum should be credited on any amount due under the contract, and that if his plea is sustained, even though his further plea immediately hereinafter set out should be denied, he is entitled to the sum of $509 in addition to the sum of $112 above referred to; that (par. 8) the amount of $608.30 which was added to the list or sales price of the truck, $3,117.30, was done as a device and subterfuge designed by the plaintiff and Yarbrough Motor Company to...