127 Ga. 30 | Ga. | 1906
(After stating the facts.) The notes sued on were ordinary promissory notes. Each contained an absolute and unconditional promise to pay, at a stated time, a given sum of money. The plea set up that at the time these notes were given it was distinctly agreed that the amount to be paid was not at all events to be the amount stated in them. That is, the defendants were to pay whatever amounts were realized from the sale of the fertilizer which had been shipped to them; and if the sales produced an amount which was less than the aggregate amount of the notes,, they were only bound to pay that amount. The promises in the writing were to pay stated sums. The real promise, as alleged by the plea, was to pay upon certain conditions other sums which might be less. than the amounts specified in the notes. The plea, did not allege any fraud, accident or mistake in making the notes. It did allege a fraudulent alteration of a contract which preceded the taking of the notes; but no fraud was perpetrated at the time the notes were given, so far as the allegations of the plea go, it being distinctly alleged that the notes were signed as they appeared, but with the agreement that they were not to be enforced except as security for the payment of other sums to be realized from the sale of the fertilizer. It seems to us that the plea was a patent, effort to vary the terms of a written contract as evidenced by the notes. The writing evidenced a promise to pay certain sums absolutely and at all events. The plea alleged the real contract to be to pay no specified amount, but such amounts as might be realized from the sale of the fertilizer, and no amount to be paid whatever unless there was a sale. There is one contract in the notes, definite and clear. There is another contract set up in the plea, which is entirely different from that which the notes evidence. The case, although not identical, is very similar to the ease -of Hirsch v. Oliver, 91 Ga. 554. The language of Mr. Chief Justice Bleckley in the opinion is pertinent here. That learned jurist says: “The plea which sought to contradict the notes by setting up an understanding that the maker was not to be bound, that the notes were executed for a purpose other than that of binding him to pay money — a purpose wholly at variance with their plain tenor and effect, contained no suggestion that the understanding and purpose
But it is said that the consideration of a note can always be inquired into, and the consideration is expressed in these notes only by the phrase, “for value received,” which is a patent ambiguity, and therefore the actual consideration of the notes can be shown. It is undoubtedly the general rule that the consideration of a contract can always be inquired into where the controversy is between the original parties. But is this an effort to inquire into the consideration? Where the promise as stated in the writing is admitted, the promisor can show that there was no consideration; or that there was a consideration which has failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts. But this case does not involve merely the question of what is the consideration for the promise, or whether there w;as a consideration, or whether, being such a consideration, it has failed in whole or in part. The purpose of the plea
The absence from the court-room of one of the counsel for the defendant, while the argument on the demurrer was being heard, -although with express leave of absence from the court, is not a sufficient reason for reversing the judgment on the demurrer.
Judgment affirmed.