Stone v. First Nat. Bank of Atlanta, 62041

• Decision Date: 17 September 1981
• Docket Number: No. 62041,62041
• Parties: , 32 UCC Rep.Serv. 1144 STONE v. FIRST NATIONAL BANK OF ATLANTA.
• Court: Georgia Court of Appeals

Page 207

285 S.E.2d 207

159 Ga.App. 812, 32 UCC Rep.Serv. 1144

STONE v. FIRST NATIONAL BANK OF ATLANTA.

No. 62041.

Court of Appeals of Georgia.

Sept. 17, 1981.

Rehearing Denied Oct. 6, 1981.

Lawrence S. Burnat, John A. Christy, Atlanta, for appellant.

M. Douglas Mann, Wayne C. Crowe, Atlanta, for appellee.

CARLEY, Judge.

The First National Bank of Atlanta (Bank), the holder, instituted suit against Stone, the maker, to recover on several demand notes. Stone answered and the case proceeded to trial. At the close of the Bank's evidence, Stone's motion for directed verdict was denied. At the close of all the evidence, the Bank's motion for directed verdict in the amount of $186,000 was granted. Stone appeals.

1. Stone's answer raised the defenses enumerated in Code Ann. §§ 81A-112(b)(2), (4) and (5). Pursuant to Stone's motion, the trial court held a hearing on these defenses and determined that they were meritless. On appeal Stone enumerates as error the failure of the trial court to sustain his defenses and to dismiss the action.

At the time the notes were made by Stone he was a resident of Georgia. At the time the instant suit was filed Stone was a resident of Texas and the exercise of personal jurisdiction over him was predicated upon the Georgia Long Arm Statute, Code Ann. § 24-113.1. In 1977 the term "nonresident" was defined so as to "include an individual... who, at the time a claim or cause of action arises under section 24-113.1, was residing, ... in this State and subsequently becomes a resident... outside of this State as of the date of perfection of service of process ..." Code Ann. § 24-117 (Ga.L.1977, pp. 586, 587). It is clear and Stone does not dispute that he is a "nonresident" within the meaning of Code Ann. § 24-117. The arguments advanced by Stone in support of his contention that the statute is unconstitutional as applied to him have been considered and rejected in Ballew v. Riggs, 244 Ga. 232, 259 S.E.2d 482 (1979). Essentially Stone urges that since he signed the notes in 1974, all rights thereunder vested at that time including his right to avoid "nonresident" status, and it would unconstitutionally impair his "obligation of contract" under Code Ann. § 2-107 to give effect to Code Ann. § 24-117 in the instant case. This argument is meritless. " 'A law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions. No person has a vested right in any course of procedure, nor in the power of delaying justice, nor of deriving benefit from technical and formal matters of pleading.' [Cit.] ... [T]he 1977 amendment to the Long Arm Statute merely provides an alternate means of service upon one who was a resident of Georgia at the time the cause of action arose and who subsequently moved to another state before service could be perfected in Georgia." Ballew, 244 Ga. at 234, 259 S.E.2d 482, supra. There is no merit in this enumeration.

2. Stone contends that it was error to deny his motion for directed verdict and to direct a verdict in favor of the Bank because there was no evidence that formal demand had been made for payment of the notes. Accepting for the sake of argument the proposition that the evidence is deficient in the manner asserted, the directed verdict for the Bank is not thereby rendered erroneous. " 'A note payable on demand is due immediately after delivery, without further notice or demand. Suit may be brought on demand paper without making any independent demand.' [Cit.] 'A cause of action against a maker or an acceptor accrues in the case of a demand instrument upon its date or, if no date is stated, on the date of issue.' [Cit.] Thus, the only 'duty' under the U.C.C. on a holder of a demand instrument is to seek enforcement of the instrument which is on its face 'immediately' due and payable within the applicable statute of limitation." Fulton Nat. Bank v. Willis Denney Ford, 154 Ga.App. 846, 849, 269 S.E.2d 916 (1980).

3. Stone urges that it was error to deny his motion for directed verdict and to grant that of the Bank as to one of the demand notes in the amount of $97,000. In support of this argument Stone contends that although he signed the note in his individual capacity he intended and the Bank expected repayment would be made by a business entity. We find Stone's argument meritless. "One who signs a document and does not show he signed the document 'in a representative capacity' is personally obligated under Code Ann. § 109A-3--403 (Ga.L.1962, pp. 156, 257). 'One who executes a note in his own name with nothing on the face of the note showing his agency cannot introduce parol evidence to show that he executed it for a principal, or that the payee knew that he intended to execute it as agent.' [Cits.] ... [U]nder Code Ann. § 109A-3--403, supra, he is 'personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity.' " Barnett v. Leasing International, 151 Ga.App. 715, 716(1), 261 S.E.2d 452 (1979). See also Colonial Film &c. Co. v. MacMillan Professional Magazines, 148 Ga.App. 632, 633(2), 252 S.E.2d 61 (1979).

4. Stone contends that he was erroneously precluded from presenting...