Thomas v. Clarkson

• Decision Date: 23 March 1906
• Citation: 54 S.E. 77,125 Ga. 72
• Parties: THOMAS. v. CLARKSON.
• Court: Georgia Supreme Court

54 S.E. 77

125 Ga. 72

THOMAS.

v.CLARKSON.

Supreme Court of Georgia.

March 23, 1906.

1. Limitation of Actions—What Law Governs—Contracts.

Where a contract which was made and intended to be performed in another state is attempted to be enforced by suit thereon in the courts of this state, the statutes of limitation of Georgia will be applied, rather than those of the other state; and the latter, being irrelevant, will not be admitted in evidence.

[Ed. Note.—For cases in point, see vol. 33, Cent Dig. Limitation of Actions, §§ 4-8.]

2. Statutes—Evidence — Laws of Another State.

In a suit in this state on a contract made and intended to be performed in another state, in which the defendant pleads the statute of the other state defining usury and prescribing as a penalty the forfeiture of all interest, and bases an appropriate plea of usury on that statute, in order to maintain the plea it is essential that he prove that the statute was in force at the time of the execution of the contract.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 390.]

3. Evidence—Presumptions—Laws of Another State.

The merits of a defense in the courts of this state by a surety on an Alabama contract setting up a discharge because of failure upon the part of the payee of a promissory note to sue the principal debtor after verbal notice to sue, will be determined by the laws of Alabama. In the absence of proof to the contrary, it will be presumed that, upon the question presented, the common law prevails in that state. In determining that question this court will follow its own rulings upon the common law. The question falls within the ruling of Howard v. Brown. 3 Ga. 531, and it was not erroneous to strike the plea.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Common Law, § 14; vol. 20, Cent. Dig. Evidence, § 101.]

4. Usury —Laws of Another State —Foreign Contract.

The evidence being silent as to the law of Alabama upon the subject of interest, it will be presumed that in Alabama the right to interest will be governed by the common law. There being nothing in the common law against the right to charge interest, and the parties having contracted for the payment of interest, which was reasonable in amount and not violative of the policy of our own law, the contract for the-payment of interest will be upheld.

5. Payment—Pleading—Partial Payment.

A plea of partial payment, which sets forth neither the time, place, nor amount of payment, is insufficient, and it is not erroneous to sustain a demurrer challenging the sufficiency of the plea.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 144.]

6. Trial—Verdict—Construction and Effect,

Only one defndant having been served with process, and he alone appearing and defending the action, the verdict in favor of the plaintiff is to be construed as one against this defendant, although he was not specifically named. Little Rock Cooperage Co. v. Hodge, 37 S. E. 743, 112 Ga. 521, 527; Sanders v. Etcherson, 36 Ga. 404 (3); Millhiser v. McAllister, 30 S. E. 661, 103 Ga. 799; Baker v. Thompson, 15 S. E. 644, 89 Ga. 487.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, § 769.]

7. Appeal — Questions Reviewable — Form of Judgment.

The question whether the judgment, which followed the verdict, should have been entered against this defendant by name, cannot be considered, since a complaint that a judgment is erroneous or defective is the proper subject-matter of direct exception, and is not ground for a new trial. Gray v. Conyers, 70 Ga. 350 (3); Baker v. Moor, 10 S. E. 737, 84 Ga, 186; Brand v. Kennedy, 71 Ga. 707.

8. Trial—Direction of Verdict.

Under the evidence, the court committed no error in directing a verdict in this case.

(Syllabus by the Court.)

Error from Superior Court, Chattooga County; W. M. Henry, Judge.

Action by J. M. Clarkson, as administrator, against W. L. Thomas and others. Judgment for plaintiff, and defendant Thomas brings error. Affirmed.

On July 22, 1901, the plaintiff filed suit against W. L. Kinsey and W. L. Thomas, as principal debtors, and Thomas Holcomb, as security. W. L. Thomas was personally served August 19, 1901, but there was no return as to service upon the other two. The suit was for $150 principal, and interest from date at 8 per cent. per annum, and attorney's fees, on two promissory notes for $75 each, under the seals of the alleged makers and surety, all signing as makers, dated December 24, 1880, and due 12 months after date. The petition alleges the insolvency and death of Holcomb as early as 1887. The prayer was for process, and for judgment for principal, interest, and attorney's fees. W. L. Thomas pleaded that, while he signed the notes, he did so not as maker, but as surety for the other two and purely for their accommodation, and that he received no part of the money loaned by the plaintiff on the notes; that at the time both of the principals were solvent, but afterwards they commenced losing their property and becoming insolvent, and that, although the plaintiff was put on notice of those conditions and requested by the defendant to collect the debt from them, he refused and neglected so to do until said Holcomb died and Kinsey moved away; and that because of the great delay under those circumstances in bringing suit he injured the defendant and thereby released him as surety. It is not claimed that any demand for the institution of the suit was made in writing by the defendant. The defendant further pleaded that after executing his notes there had been, to the best of his knowledge and belief, some payments made on them at different times, for which credit should be given, but the dates and amounts were not stated; that the notes were made and to be paid in the state of Alabama, where all of the parties lived at the time; that under the laws of that state the time within which suits upon contracts under seal should be brought was limited to 10 years after the cause of action matured, and therefore the action was barred; that under the statute of Alabama, as found in the Code of 1896, the highest rate of interest authorized to be charged on a loan was 8 per cent per annum, and that, if anything in excess of that be taken, the lender will lose all interest; that as a matter of fact the plaintiff, without the knowledge of the defendant, deducted 2 per cent. of the principal amount named in the note in advance, and consequently did not pay over to the borrower the full amount agreed to be loaned, but nevertheless charged the full rate of 8 per cent. per annum interest on the full amount agreed to be loaned, and that on that account the notes were usurious and the plaintiff lost the right to recover any interest whatever. Upon written motion of theplaintiff, the, court struck so much of the plea "as refers to and attempts to set up notice so as to relieve the security, " and so much "as refers to and attempts to set up payment or partial payment." At the trial the plaintiff introduced the notes, which were signed by all three of the parties as makers, and proved that (he had incurred the counsel fees contended for, and) that the amount claimed was reasonable. The defendant proved that all of the parties lived in Alabama at the date of the note; that the notes were made there, and were an "Alabama consideration and undertaking, " being a loan of money; that the defendant did not receive any benefit thereunder, but that the whole sum, less 2 per cent. of the principal named in the notes, was paid over to Kinsey; that the 2 per cent. not paid was retained by Clarkson at the time of making the loan; that Kinsey, the maker who borrowed the money, moved to Tennessee about 1892, where he now lives, and that the defendant moved to Georgia about 1883, where he has lived ever since.

There was admitted in evidence Alabama statutes as follows: Code Ala. 1896, c. 64, § 2626: "The rate of interest upon the loan or forbearance of money, goods, or other things in action is 8 dollars upon one hundred dollars for one year, and at that rate for a greater or less sum, for a longer or shorter time;" and section 2630: "All contracts for the payment of interest upon the loan or forbearance of goods, money, things in action, or upon any contract whatever at a higher rate than is prescribed in this chapter, are usurious and cannot be enforced, either at law or In equity, except as to the principal, and if any Interest has been paid, the same must be deducted from the principal, and judgment rendered for the balance only." Defendant offered in evidence Alabama statutes as follows: Code Ala. 1896, c. 72, art. 1, § 2793: "Civil suits must be commenced after the cause of action has accrued within the period prescribed in this chapter, and not afterwards." Section 2795: "Within 10 years: 1. Actions founded upon any contract or writing under seal"—which were excluded by the court. On the close of the evidence, the court directed a verdict for the plaintiff for $147 principal and $282.92 interest thereon to date (March 13, 1905), and $42.99 attorney's fees. The defendant moved for a new trial upon the following grounds: (1, 2) That the verdict is contrary to law and evidence. (3, 4) Because the court erred in striking so much of the defendant's plea as related to relieving the security, and so much of his plea as related to payments upon the notes. (5) Because the court erred in excluding from evidence the statutes of Alabama contained in chapter 72, art 1, §§ 2793, 2795, of the Code of Alabama, relating to the limitations of actions. (6) Because the court erred in directing the jury to find for the plaintiff any interest because, under the laws of Alabama and under the evidence in the case, there should have been no interest found in favor of the plaintiff on account of usury having been charged by the plaintiff. (7, 8) Because the verdict fails to set out against who the same was found, and because "if the verdict should have been...