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Lawskills.com Georgia Caselaw
GLASSER v. DECATUR LUMBER & SUPPLY COMPANY.
36676.
Action on notes. Before Judge Morgan. DeKalb Civil Court. February 11, 1957.
CARLISLE, J.
1. An assignment of error in a bill of exceptions, complaining of the trial court's overruling a general demurrer to the plaintiff's petition, which is not argued in this court either orally or in the brief of counsel for the plaintiff in error and upon which there is no general insistence, will be treated as abandoned. Code 6-1308; Cuthbert Ice Co. v. York Mfg. Co., 20 Ga. App 695 (2) (93 S. E. 279).
2. " 'Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review.' " Godwin v. Hudson, 93 Ga. App. 858 (1) (93 S. E. 2d 379), and citations. The assignment of error on the judgment of November 9, 1956, in which time was allowed the defendant to amend his answer, comes within the rule stated and is not subject to review.
3. The discharge of an indorser for which provision is made in Code 103-205 is not applicable where the principal in the promissory note resides outside this State; and if the maker resides in this State, in order for the notice for which provision is made in Code 103-205 to be effective, such notice must state the county in which the principal resides.
4. A person signing a promissory note on its back without qualification is prima facie an indorser.
5. The trial court, after every issuable defense had been properly stricken on demurrer, did not err in entering judgment for the plaintiff on the promissory notes which were unconditional contracts in writing.
On May 25, 1956, Decatur Lumber & Supply Company brought an action against Midwest & Southern Builders, an Illinois Corporation, and Henry E. Glasser, in which it is alleged that the defendants are indebted to the plaintiff in the principal amount of $550, together with interest at 6 percent, from November 23, 1953, and 10 percent attorney's fees, by reason of a certain series of six promissory notes dated November 23, 1953, which were executed by the defendant corporation through its president, Henry E. Glasser, and which were indorsed individually on the reverse side of the notes by Henry E. Glasser and delivered by him to the plaintiff. Save for the amounts due and the dates when due, the notes are identical and in the following terms:
"On or before November 27, 1953 after date, I promise to pay Decatur Lumber & Supply Co. or order, two hundred twentyseven & -- 86/100 dollars -- Dollars, for value received, at -------- with interest from date at the rate of six percent per annum until paid, and all cost of collection, including ten percent attorney's fees, if collected by law or through an attorney.
"And each of us, whether maker or endorser, hereby severally waives and renounces for myself and family my right to the benefits of the homestead and exemptions provided for by the laws of the State of Georgia, or the United States, as against this debt or any renewal thereof; and each further waives demand, protest and party.
By: /S/ Henry E. Glasser (Seal)
President"
The due dates of the notes are: November 27, 1953; December 18, 1953; December 26, 1953; January 1, 1954; January 8, 1954; and January 15, 1954.
On the reverse side of one of the notes, payments aggregating $177.86 are recorded, and the last payment is dated December 14, 1954. It is further alleged that the sums for which suit is brought are past due and unpaid, and that the plaintiff has demanded payment of the defendants which they have failed and refused to make.
The defendant, Henry E. Glasser, filed a general demurrer to the plaintiff's petition. In his verified answer, the defendant, Henry E. Glasser, alleged the following: (1) Midwest & Southern Builders is an Illinois corporation, and the defendant admits that he personally resides at 1336 Clearview Drive, N. E., Atlanta, Georgia, but denies that Midwest & Southern Builders, Inc., can be served at that address in DeKalb County. (2) The defendant denies that he is personally indebted to the plaintiff in the sums for which suit is brought, or in any sums whatsoever. He alleges further that on March 2, 1954, and for six consecutive months thereafter, the defendant corporation made various payments to the plaintiff, while he, Glasser, was president of the corporation, and that the plaintiff accepted these payments on behalf of the corporation. The last payment was made by the corporation on December 14, 1954. Subsequently, on January 12, 1955, the defendant Glasser wrote the plaintiff a letter stating that the corporation was in default in its payments on the notes, which he signed as guarantor, and demanded that they file suit against the corporation and protect their rights at once. (3) The defendant Glasser denied that the notice of intention to enforce the provisions of the note was given to both defendants; that the notice was directed to him only, and that he is not personally liable for attorney's fees. (4) The defendant Glasser denied that the sums for which suit was brought are past due and unpaid, and that demand had been made upon the defendants and refused. (5) He alleged further that he signed his name on the reverse side of the notes as guarantor, and not as an indorser, and that he cannot, therefore, be sued in the same action as the maker; that he received no consideration or benefit whatsoever for guaranteeing the notes, and that, as guarantor, he is relieved from the liability and obligation of paying the notes by virtue of having notified the plaintiff of the default, failure and refusal of Midwest & Southern Builders to pay the notes to the plaintiff as they became due, and as he requested the plaintiff to enforce its claim and protect its rights against the defendant but the plaintiff failed to do so.
The plaintiff demurred to the answer on the following grounds: (1) The answer does not in its entirety, nor in any of its several parts, set forth any issuable defense to the plaintiff's action. (2) The plaintiff demurs to and moves to strike paragraphs 1, 2, 3 and 4 of the answer on the ground that they constitute no issuable defense to the plaintiff's cause of action. (3) The plaintiff demurs to that portion of paragraph 5 of the defendant's answer which alleges that the defendant, Henry E. Glasser, states that he signed his name to the back of the notes as guarantor and not as indorser and that he cannot, therefore, be sued in the same action as the maker on the ground that this states a conclusion unsupported by any properly pleaded allegations and is insufficient in law as to the defense to the plaintiff's cause of action. (4) The plaintiff demurs and moves to strike the remaining portion of paragraph 5 of the defendant's answer as it sets forth no defense to the plaintiff's cause of action.
By order dated November 9, 1956, one of the judges of the court sustained the plaintiff's demurrer to the corporate defendant's answer, to which no exception is taken, overruled the general demurrer to the individual defendant's answer, and sustained grounds 2, 3, and 4 of the plaintiff's "special demurrers" to the individual defendant's answer, allowing the individual defendant 15 days within which to amend.
By order dated November 15, 1956, one of the judges of the court entered an order overruling the individual defendant's general demurrer to the petition.
On February 11, 1957, one of the judges of the court entered the following order: "It appearing to the court that heretofore on November 9, 1956, the court did sustain grounds 2, 3, and 4 of the plaintiff's special demurrers to the answer of the defendant, Henry E. Glasser, allowing the said defendant 15 days in which to amend his petition [answer?] ; and, whereas the said defendant has failed to amend said petition [answer?] within the time allowed, it is hereby ordered that the same said ruling on demurrer is the law of the case, and the defendant is hereby barred from further amendment with respect thereto."
On February 11, 1957, the plaintiff amended its petition by striking its prayers for attorney's fees.
By order of February 11, 1957, one of the judges of the court entered the following judgment: "The above stated cause coming on regularly to be tried on the 11th day of February, 1957, and it appearing that the plaintiff in open court struck its claim for attorney's fees, and after introduction of the promissory notes sued upon and after consideration of the evidence and argument of counsel, without the intervention of a jury, it is hereby considered, ordered and adjudged that the plaintiff do have judgment against the defendants in the amount of $550 principal and $79.75 interest from November 23, 1953, together with -------- costs of court."
Error is assigned by the defendant Glasser upon each of the foregoing rulings.
1, 2. Headnotes 1 and 2 are self-explanatory and require no elaboration.
3. Under the allegations of the petition, this action is brought by the plaintiff to collect certain sums alleged to be due, interest, and attorney's fees, on a series of six notes made payable to the plaintiff, or its order, drawn by Midwest & Southern Builders, signed by Henry E. Glasser, as president, and indorsed by Henry E. Glasser individually in blank before delivery to the plaintiff. The action was instituted on the notes on May 25, 1956. The notes are by their terms payable on November 27, 1953; December 18, 1953; December 26, 1953; January 1, 1954; January 8, 1954; January 15, 1954; and each of the notes contains a waiver of demand and protest. The individual defendant in his answer denied each of the material allegations of the petition.
In paragraph 2 of his individual answer, the defendant Glasser denies that he is individually liable by virtue of the following notice given to the plaintiff by letter dated January 12, 1955: "This is to advise that the notes signed by me as president of Midwest & Southern Builders, Inc. are in default at this time.
"As I signed these notes as guarantor only on the reverse side, I want to put you on immediate notice that I want no further responsibility for this corporation in this matter, and insist that you file suit at once against the corporation in order to effect collection."
"A person placing his signature upon an instrument other than as maker, drawer, or acceptor, is deemd to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity." Code 14-604.
"Where a person, not otherwise a party to an instrument, places there on his signature in blank before delivery, he is liable as indorser. . . 1. If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties. . ." Code 14-605.
"Any surety, guarantor, or indorser, at any time after the debt on which he is liable becomes due, may give notice in writing to the creditor, . . . to proceed to collect the same from the principal, . . . and if the creditor . . . refuses or fails to commence an action for the space of three months after such notice (the principal being within the jurisdiction of this State), the indorser, guarantor, or surety giving the notice, . . . shall be discharged. No notice shall be considered a compliance with the requirements of this section which does not state the county in which the principal resides." Code 103-205.
4. A person signing a promissory note on its back without qualification is prima facie an indorser. Massell v. Prudential Ins. Co., 57 Ga. App. 460, 470 (196 S. E. 115), and citations.
Where a pleader's conclusions are not sustained by any facts set forth in his plea, such conclusions are subject to demurrer. Carusos v. Briarcliff, Inc., 76 Ga. App. 346 (45 S. E. 2d 802).
Under an application of the foregoing principles of law, the trial court properly sustained the plaintiff's special demurrer to the following portion of paragraph 5 of the defendant's answer: "Further answering, defendant, H. E. Glasser, states that he signed his name to the back of said notes as guarantor, and not as an indorser, and that he cannot therefore, be sued in the same action as the maker." The defendant did not in this paragraph, or elsewhere in the answer, allege any facts showing it to have been the intention of the parties that he indorsed the note as a guarantor. Consequently, the presumption referred to above prevails.
5. Under the terms of the notes themselves, and following the two foregoing rulings of the trial court, the only issuable defense remaining was whether attorney's fees were recoverable. Following the trial court's ruling on the plaintiff's demurrers to the answer, the plaintiff by amendment struck those portions of the petition seeking to recover attorney's fees, leaving the defendant without any issuable defense. The notes, which were introduced in evidence, show upon their face that they had reached maturity and were unconditional contracts in writing by the terms of which demand and protest were waived. The trial court, under these circumstances, did not err in dismissing the jury and entering judgment for the plaintiff.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
Zachary & Hunter, contra.
Lester & Leiter, for plaintiff in error.
DECIDED MAY 3, 1957.
Saturday May 23 01:47 EDT


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