Adams v. Williams

125 Ga. 430 | Ga. | 1906

Evans, J.

(After stating the facts.) On the argument here, counsel for the plaintiff in error characterized the written instrument addressed to J. C. Mosely and signed by W. W. Williams as a “letter of credit," notwithstanding it did not name the amount for which credit could be extended (Hopkins v. Cooper, 28 Ga. 392), and purported to be a proposal to sign a guano note (Scribner v. Rutherford, 65 Iowa, 551), instead of being couched in the usual form of an absolute undertaking to pay the money advanced or the amount for which credit might be given .upon the faith of the writing. See 18 Am. & Eng. Enc. L. (2d ed.) 831-832; 2 Dan. Neg. Inst. (5th ed.) §1790 et seq.; 7 Cen. Dig. §151, pp. 238-243; Atlanta Bank v. Northwestern Co., 83 Ga. 356. In the view we take of the case, it is not, however, necessary for us to make any definite ruling touching this delicate question of terminology, or to undertake to decide what liability (if any) the writer of the letter incurred.

1. In the first place, the-plaintiff does not show that either he or the firm of which he is the surviving partner ever became vested with a legal right to call Williams to account for his refusal to sign the notes declared on or to pay the same in whole or in part. By amendment, the allegation was made that “said notes and said letter from Williams, dated February 14th, 1901, became the property of petitioner before suit was filed.” If this statement was anything more than a bare conclusion of law, it amounted to no more than an assertion that the plaintiff had (in some manner unexplained) become the owner, legal or equitable, of the notes, and also the proprietor of the letter itself, which had lost whatever commercial value it had ever had, since credit thereon could no longer ■be extended. The plaintiff’s firm did not accept any invitation which this letter may have held out to persons to look to the writer for payment for guano purchased by Mosely. On the contrary, the plaintiff says the credit extended to Mosely on the faith of the letter was given him by the Valdosta Guano Company, and the Virginia-Carolina Chemical Company, and that the only connection which the'firm of Brice & Adams had with the transaction was to act as the agent of these two companies in selling the fertilizers. If the writing was a “letter of credit” in a technical sense, then each of the companies extending the credit could maintain an action of assumpsit thereon (Lawrason v. Mason, 3 Cranch, *492) ; or, if it merely amounted to a proposition to become surety on a guano note, and the proposal was sufficiently definite and was accepted by these companies, they could, after furnishing the fertilizers and presenting a note to be signed by the writer, predicate upon his refusal to sign an action for damages for the breach of a contract. Scribner v. Rutherford, 65 Iowa, 554. In either event, the chose in action (the claim upon which depended the right to sue in assumpsit or for breach of contract) would be assignable. Civil Code, §§3077, 3079. But before the plaintiff could be permitted to maintain a suit against Williams based upon the writing, the former -would have to allege fmd prove that the chose in action had been duly assigned in writing, either to his firm or to him as surviving partner. Turk v. Cook, 63 Ga. 681; Steele v. Gatlin, 115 Ga. 931. One of the special grounds of the demurrer filed by Williams was that the “petition does not show any privity of contract between the plaintiff and said defendant.” There could be no privity of contract between them unless the plaintiff, by legal assignment and transfer in writing, became vested with the legal title to the chose in action; and his equivocal amendment, to the effect that the letter written by Williams “became the property of petitioner before suit,” did not meet the specific objections raised by special demurrer to his prosecution of the suit. It does not appear that either of the guano companies has ever undertaken to assign its claim against the defendant Williams.

2. Another and an insuperable objection to the maintenance of the suit against Williams is that it was not brought in'the county of his residence. The suit against him was joined with one upon the promissory notes against Mosely, the maker thereof. Even if Williams ought to have signed these notes, the fact remains that he did not do so. One of the results of his refusal so to do was to deprive the holders of the notes of the privilege of joining him as a codefendant in a suit thereon brought against Mosely in the county of the latter’s residence. Had Williams actually signed the notes, the trial court would have had jurisdiction of such an action — a suit against “joint, or joint and several, obligors or promisors.” Civil Code, §4952. But the maker of one contract can not be sued, in a county other than that in which he resides, together with the maker of a separate and independent contract to which the former never became a party (Renfroe v. Shuman, 94 Ga. 153; Baker v. City Nat. Bank, Id. 88), unless the relation of maker and indorser of a promissory note exists between them. Civil Code, §4953. Mosely, the maker of the promissory notes, was not a party to the writing signed by Williams, and Williams was not a party to the contract evidenced by these notes. It would be absurd to say that Mosely, whose only default was failure to pay his notes, could be held liable in damages because Williams refused to sign the notes, or that Mosely could be joined as a party defendant to an action of assumpsit based on the letter addressed to him by Williams and used for the purpose of securing credit. Mosely’s agreement was to pay the notes, not to become the surety .of Williams or to guarantee his signing the notes as a joint principal or surety. It is equally clear that Williams never agreed to pay any open account against Mosely for fertilizers furnished him on credit, but only to sign with him a guano note, presumably as surety; that is to say, Williams never actually entered'into any contract of suretyship, but, at most, indicated by his letter a willingness to enter into such a contract in a particular way, and in that way only. However, if by any stretch of the imagination it can be assumed that Williams became bound as surety to pay Mosely’s guano account, then we are confronted with the fact that, so far as appears, there has never been any assignment of that account to the plaintiff; and, moreover, the suit brought by him is not upon open account, but the promissory notes signed by Mosely are specifically declared on, and complaint is made of the refusal of Williams to sign those notes or to pay them when they fell due. The demurrer filed in behalf of Williams distinctly raised the point that inasmuch as the petition disclosed that he was a resident of Washington county, the county court of Brooks county was without jurisdiction to entertain the suit, so far as he was concerned; and the trial judge could hardly have done otherwise than dismiss the action as to Williams; for the petition, instead of alleging facts showing that he and Mosely were joint promisors, disclosed the contrary, and set forth the complaint that Williams had wrongfully refused to become a joint promisor with his codefendant.

Judgment affirmed.

All the Justices concur.