South Georgia Trust Co. v. Neal

• Decision Date: 18 December 1931
• Docket Number: 8492.
• Citation: 161 S.E. 815,174 Ga. 24
• Parties: SOUTH GEORGIA TRUST CO. v. NEAL.
• Court: Georgia Supreme Court

161 S.E. 815

174 Ga. 24

SOUTH GEORGIA TRUST CO. v. NEAL.

No. 8492.

Supreme Court of Georgia

December 18, 1931

Syllabus OPINION.

Submitting to jury question of construction of contract will not warrant reversal, where contract was properly construed with same result as if court construed it (Civ. Code 1910, § 4265).

Agreement to pay on or before July 14 held to give party entire day within which to make payment.

Error from Superior Court, Dougherty County; B. C. Gardner, Judge.

Suit by John Neal against the South Georgia Trust Company. There was a judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Agreement to pay on or before July 14 held to give party entire day within which to make payment.

The South Georgia Trust Company filed suit against John Neal, in the city court of Albany, in May, 1930, on certain notes, to secure which a deed to described property was executed, and following the filing of the suit on the notes, the property was advertised for sale under power embodied in the security deed. John Neal thereupon filed a petition to enjoin the suit on the notes and the sale of the property. Pending this suit counsel for both parties entered into an agreement in the form of a letter as follows:

"June 7, 1930.

"Judge E. L. Smith, Attorney at Law,

"Albany, Georgia.

"Dear Sir:

"In re South Georgia Trust Co. v. John Neal, City Court of Albany; and John Neal v. South Georgia Trust Co. Equitable petition Dougherty Superior Court.

"My client has agreed, and I will get him to sign his approval on the bottom of this letter, that he will pay to South Georgia Trust Company on or before the second Monday in July, 1930, to wit, July 14, 1930, the sum of $3,550 in full settlement of all claims and demands of every kind whatsoever held by South Georgia Trust Company against John Neal, and in full and complete satisfaction of the suit now pending in favor of South Georgia Trust Company against John Neal, filed to the May term, 1930, of the City Court of Albany, Georgia. All security deeds held by South Georgia Trust Company to be canceled of record. John Neal also to pay the costs of court. Unless these payments are made on or before the July term, 1930, of the City Court of Albany, you are authorized and directed to take a judgment for the full amount claimed in the said suit now pending in the city court of Albany, Georgia, in favor of South Georgia Trust Company against John Neal. The payment on or before said time to operate as a full and complete satisfaction as aforesaid.

"Yours very truly,

"[Signed] S. B. Lippett, John Neal."

The city court of Albany convened on the morning of Monday, July 14, 1930, and when the case of the South Georgia Trust Company v. John Neal was reached on the calendar, the attorney for John Neal, not having heard from him, struck his answer and consented for a verdict and judgment to be taken against him. This was shortly after court had convened. About an hour after the judgment had been taken, John Neal appeared, stated that he was ready to carry out his agreement as expressed in the letter set out above, and made a tender of the full amount agreed upon. The trust company refused to accept the amount, on the ground that the time for payment under the terms of the agreement had expired, and counsel for the defendant had agreed to the verdict and judgment.

Whereupon John Neal brought a petition setting up facts substantially as set out above; claiming that under the terms of the agreement he had all the time during the day of July 14 1930, within which to make payment; and praying that the trust company, its agents, officers, etc., be enjoined from further prosecution of the suit and the judgment, and from advertisement or any foreclosure on the loan deed, and be required to deliver up and cancel the notes and security deed on receipt of payment of $3,550 and costs of court, in accordance with the agreement; and for general relief. The trust company filed its answer, contending that the agreement entered into had expired at the time judgment was taken in thecity court of Albany, that counsel for petitioner consented to the taking of judgment, and that it was binding. At interlocutory hearing the judge ordered that the injunction prayed for be granted, but "further ordered as follows: (a) That should defendant, South Georgia Trust Company, surrender to plaintiff, John Neal, within ten days from this date, all of its lien papers of whatsoever character against the property described in plaintiff's petition, marked canceled and satisfied, provided the said John Neal will simultaneously therewith pay to the defendant $3,550, plus costs of court on the judgment issued from the city court of Albany, and also execute and deliver to defendant a second lien, subject to first lien only, which may be executed by said John Neal to procure the said $3,550 and said costs, which said...