161 Ga. 655 | Ga. | 1926
(After stating the foregoing facts.)
The plaintiff filed demurrers, both general and special, to the answer of the defendant setting up an equitable defense to the suit. These demurrers were overruled by the auditor, and the plaintiff filed exceptions to this ruling. The court below overruled the exceptions filed by the plaintiff. And correctly so, we think. In so far as the allegations of the answer were open to the special demurrers, the amendments made cured the defects; and the general demurrer going to the entire answer was properly overruled. We shall refer to this fact further on, and point out why the general demurrer should not have been sustained, and the reason there given for holding that the general demurrer was properly overruled will be made more clear after a discussion of the merits of the case.
The motion to dismiss and strike the defendant’s exceptions of fact numbered one and two was based upon these grounds: “1. That said exceptions are as to findings of fact made by the auditor on conflicting evidence, and it is necessary that said evidence be considered in passing on each of said exceptions of fact; and the evidence with reference to each of said findings of fact, which was adduced upon the hearing before the auditor, is not set out anywhere in the defendant’s exceptions or attached to said exceptions as an exhibit, or even pointed out by appropriate reference. 2. Each of said exceptions is too vague and indefinite to present any clear-cut issue of fact. 3. Each of said exceptions fails to specify clearly and distinctly the errors complained of. 4. Said exceptions inextricably commingle and intermix questions of law and questions of fact.”
The first exception of fact to the auditor’s report is as follows: “Defendant excepts to the auditor’s finding of fact, to the effect that the plaintiff bank had credited on the note sued on one half the amounts realized from the collaterals which it held to secure the Shellman Oil Company note, upon the following grounds': (1) Said finding is contrary to law. (2) Said finding is contrary to the undisputed evidence in the case. (3) Said finding of fact is erroneous for the reason that it is based upon certain erroneous findings and conclusions of law made by the auditor, namely, the conclusions of law stated in the 7th and 8th paragraphs of the findings of law, and particularly that finding in paragraph 8 in
“Defendant further excepts to said finding of fact No. 27, upon the ground that under the undisputed evidence in the case, as shown by the testimony of Thomas H. Milner, appearing in the record from pages 113 to 124 and from 184 to 198, and particularly on pages 113, 114, and 115 of the brief of the evidence, it appeared that there was an agreement between Mr. Milner as the authorized agent and representative of the bank, and the defendant, by the terms of which the proceeds arising from the sale of the Georgia Cotton Company stock belonging to G. C. Mays were to be credited pro rata on the two notes which had been executed to the bank by the defendant, P. W. Jones, and J. S. Billingslea.” And here follows, duly set out in the exception, the testimony of Milner on the subject referred to and under consideration. The pertinent parts of his testimony are quoted, and the pages of the record upon which it is found are given. After quoting the testimony of Milner, the exception continues: “Exceptor further excepts to said finding of fact, because of the testimony of P. W. Jones, defendant, which is undisputed in the record, and reappears in the auditor’s brief of evidence on pages 81 to 107 and 195 to 196, and particularly that portion of the testimony of defendant appearing on page 82 of the auditor’s brief of evidence, as follows:” And this is followed by the evidence of the defendant, P. W. Jones, on the subject. The defendant then further sets forth his exception in the following language: “Said finding of fact was further erroneous for the reason that in the auditor’s 28th finding of fact he expressly found that the-distinct agreement and understanding between defendant Jones and Mr. Milner, representing the bank, was that the proceeds of the sale of this stock was to be applied as a credit on the notes given by the defendant Jones and J. S. Billingslea, to take up the Shellman Oil Company’s indebtedness.”
The defendant’s second exception of fact is as follows: “Defendant excepts to the 29th finding of fact by the auditor, to the effect
“Defendant further excepts to said finding of fact on the ground that under the auditor’s finding of fact number 28 there was a distinct agreement and understanding between the defendant Jones and Mr. Thomas H. Milner, the attorney and authorized agent of the bank, as a part of the consideration for the execution of the note sued on, that the proceeds of the sale of the stock of G. C. Mays in the Georgia Cotton Company should be applied one half to the note of P. W. Jones and one half to the note of J. S. Billingslea.”
In view of the nature of these exceptions of fact we do not think that the plaintiff’s exceptions thereto, on the ground that they were vague, indefinite, and failed to specify the errors complained of,
The exceptions of law filed by the defendant were as follows:
“1. Defendant objects to the auditor’s 7th finding of law, to the effect that the plaintiff bank is entitled to a judgment against the defendant for the principal sum of $9,570.48, besides interest and attorney’s fees, together with a special judgment against the property described in the security deed, upon the following grounds, to wit: (1) Said finding is contrary to law. (2) Said finding is contrary to the undisputed evidence in the case. (3) Said finding and conclusion is contrary to the auditor’s findings of fact, and is erroneous when applied to the facts as found by the auditor in his report, as follows, to wit: In the auditor’s 15th finding of fact, he found that on January 28, 1922, G. C. Mays executed to the plaintiff bank an assignment to 307 1/2 shares of the capital stock of the Georgia Cotton Company, To secure whatever indebtedness I may now owe said bank.’ In the auditor’s 25th .finding of fact he found that the plaintiff bank sold said stock to J. S. Billingslea for $37,500.00. In the auditor’s 26th finding of fact he found that out of the proceeds of the sale of said stock, $22,640.52, was paid to the plaintiff bank on Mays’ indebtedness to it. In the auditor’s 28th finding of fact he found that there was an agreement and understanding between the defendant Jones and Mr. Thos. H. Milner, the authorized attorney, agent, and representative of the plaintiff bank, that one half of the proceeds of the collateral held by the bank to secure Mays’ indebtedness would be applied on the note sued on, and that, in connection with this agreement and understanding, the stock of G. C. Mays in the Georgia Cotton Company was represented as one of the collaterals referred to, and was understood by both Mr. Milner and Mr. Jones to be a part of the collateral behind the Mays indebtedness. Defendant therefore excepts to said finding of law, and avers that under the findings of fact made by the auditor, and under the undisputed evidence in the case, and under a proper legal construction of the assignment from G. C. Mays to the plaintiff bank of the stock in the Georgia Cotton Company, said finding of law is erroneous, and the auditor should have found that the note sued on should be credited with one half of the difference between $37,500.00 and $22,640.52.
These exceptions of law are sufficient as against the objections that they do not sufficiently set out the evidence that was pertinent, that they are vague and indefinite, and that they confuse the questions of law and questions of fact.
The plaintiff filed numerous exceptions of law and fact to the report of the auditor, and the defendant filed two exceptions of law and two exceptions of fact. -The judge struck all exceptions filed by the plaintiff, except two. The defendant in a cross-bill of exceptions assigned error upon so much of this judgment as sustained the two exceptions filed by the plaintiff. The trial court sustained the first and second exceptions of fact and the first and second exceptions of law filed by the defendant; and to this ruling the plaintiff excepted. We shall not take up in order all of these exceptions filed by the plaintiff and by the defendant, but shall decide certain of them, and the rulings made will be controlling upon the merits of the case. One of the exceptions made by the defendant is to the auditor’s 27th finding of fact, to the effect that the plaintiff bank had “credited on the Jones note sued on one half the amounts realized from the collaterals which it held to secure the Shellman Oil Company note.” This is excepted to upon the grounds that it is contrary to law, contrary to the undisputed evidence, and that it is erroneous for the reason that it is based upon certain erroneous findings and conclusions of law made by
The basic ruling of the auditor in this matter is in the last findings just quoted above. The exception of the plaintiff to the ruling sustaining the defendant’s exceptions to these findings of the auditor goes to the main question in this case. The finding of the auditor was that “only the personal indebtedness of G. C. Mays to the plaintiff bank was intended to be secured by the assignment from Mays to the bank of the shares of stock of the Georgia Cotton Company, and that such transfer of stock was not held by the bank as security for the Shellman Oil Company note which was indorsed by Mays and others.” Upon the exceptions made by the defendant in the case, the court below reversed this finding of the auditor, virtually holding that the transfer of stock just referred to was not only to secure the personal indebtedness of Mays, but made that stock also security for the Shellman Oil Company note. We are of the opinion that the finding of the auditor upon this vital point was correct. G. C. Mays at the time of the trans
It appears in the record that the transfer of Mays’ stock .was prepared by the bank’s attorney; and if there is ambiguity, it would have to be construed against the bank. The defendant in this case, who claims that the transfer was also to secure the Shellman Oil Company’s note, can have no broader meaning given to the expression than the bank is entitled to; for when the transfer was made, it was to the bank, and if the bank can not claim that the transfer was to secure the Shellman Oil Company note in addition to the personal indebtedness of Mays, the defendant Jones can not claim it. But we do not think there was any ambiguity in it. Certain parol evidence was admitted, which .was objected to by the plaintiff. If there was no ambiguity, then this parol evidence should not have been admitted, and the court below properly reversed the ruling of the auditor admitting this parol testimony. But with the parol testimony in as it stands, which was objected to (the testimony of Jones and of
It might appear from what we have said above that the general demurrer to the cross petition in the answer should have been sustained; and at first it so appeared to us. But we reach the conclusion that the general demurrer should have been overruled in view of the fact that it is alleged in one part of the answer that “the stock of the said Mays was retained to secure this note.” It may be that, applying the strict rule that the pleadings should be most strictly construed against the pleader, this expression should have been held open to the special demurrer that it was vague and indefinite; but we concluded to examine the matter further upon its merits and pass upon the controlling question with which we have just dealt.
Moreover, in his fourth finding of fact the auditor found that “On May 8th, 1922, Jones, and at about the same time Billingslea, both of whom were indorsers on the Shellman Oil Company note held by the plaintiff bank, each gave to the plaintiff bank a new note for one half of the Shellman Oil Company indebtedness to the bank, and that it was the intention and understanding of the parties at the time that Jones should be relieved of any liability on the Shellman Oil Company note, and that Billingslea should be relieved of any liability on the Shellman Oil Company note, and that to this extent there was a novation as to the Shell-man Oil Company note.” This finding is not excepted to, and we are of the opinion that even if the Cotton Company stock was pledged as security both for Mays’ individual debts and for the debts upon which he was liable as an indorser, this novation would have released that stock so pledged from the lien, so that the bank could no longer hold it, but could be forced to deliver it to the parties to whom the equity in the stock, after the discharge of
Under the rulings made in this and the preceding division of this opinion, Jones, the defendant, was not entitled to have the stock pledged by Mays as security applied to this note which he had given for one half of the Oil Company indebtedness. And it follows further, that the plaintiff bank was entitled to a judgment for the amount found by the auditor in favor of the bank, that is, $9,570.48, and the court erred in finding otherwise.
And these rulings upon the merits of the case render it unnecessary to pass upon the exceptions which we have not expressly referred to, and the rulings of the .court thereon.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.