Cooper v. American Discount Co.

16 S.E.2d 791 | Ga. Ct. App. | 1941

The assignments of error are without merit. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.

DECIDED OCTOBER 1, 1941. The American Discount Company brought an action against Cooper, the plaintiff in error, hereinafter called the defendant, to recover on a negotiable instrument executed by the defendant to the Kemp-West Motor Company, in the principal sum of $699.60. The instrument, bearing date March 31, 1937, given for the purchase price of a motor vehicle, was payable in twelve monthly installments of $58.30 each, commencing April 5, 1937. The instrument stated that the sum of $396.00 was paid on delivery and the note sued on was for the balance. The petition further alleged that only three of the monthly installments had been paid and that there was a balance due of $524.70. The defendant answered in effect that the note had been fully paid. On the trial the judge directed a verdict for the plaintiff for $331.30 principal and $80 interest. The defendant filed a motion for new trial on the general grounds, and by amendment added additional grounds which he designated as 5 to 14, inclusive. When the motion came on for hearing the judge entered an order granting it unless the plaintiff would write off the judgment to $214 principal and interest at 8 per cent. from June 10, 1937; if this were done the motion to be overruled. The plaintiff complied with the provision and the order overruling the motion then became effective. The defendant excepted.

The evidence for both sides may be briefly summarized as showing the following facts: In February, 1937, the defendant delivered to the Kemp-West Motor Company an automobile, receiving therefor a credit memorandum for $700. On March 31, 1937, the defendant executed to the Kemp-West Motor Company on the usual form a sale contract for a truck. This is the instrument sued on. The defendant did not at that time receive the truck, but went to Detroit, Michigan, for it. On the same day the purchase-money instrument sued on was executed the Kemp-West Motor Company transferred it to the plaintiff, along with two other sale contracts of other customers of the Kemp-West Motor Company, paying $600 for the Cooper note. After purchasing the note the plaintiff notified Cooper and sent him a coupon book, representing the payments due by Cooper to the plaintiff. Cooper did not pay any of the notes to the plaintiff. When he received the communication from the plaintiff he went to Kemp of the Kemp-West Motor Company, who handled the transactions for that company, and he and Kemp discussed the situation as between the Kemp-West Motor Company and Cooper, to the effect that Cooper had paid for the truck with his credit memorandum of $700, a check for $250, and a note for $60 (the last two instruments which were introduced in evidence as having been paid). Kemp informed Cooper that he would hear nothing further from the $699 note held by the plaintiff; that it was a mistake and would be adjusted. After the note sued on was transferred to the plaintiff, it in turn procured the Kemp-West Motor Company to assist the plaintiff in collecting from Cooper. The defendant contended that he executed the note sued on and delivered it to the Kemp-West Motor Company for the purpose of getting insurance on his truck when he went for the truck in Detroit. It further appeared that there was an agreement between the plaintiff and the Kemp-West Motor Company that the plaintiff, on each instrument purchased, although the papers were transferred without recourse, would set up a $12 reserve which was to be applied to cover any losses to the plaintiff on the papers purchased. If the losses did not consume the reserve, the balance, if any, was to be refunded to the Kemp-West Motor Company. The $250 check and the $60 note were paid to the Kemp-West Motor Company on June 10, 1937. This was all the defendant paid to the Kemp-West Motor Company after the execution of the note sued on. The Kemp-West Motor Company in turn paid to the plaintiff three $58.30 payments, the dates of payment not being shown by the evidence. As a result of this course of dealing the plaintiff, with the assistance of Cooper, procured an indictment against Kemp for cheating and swindling the plaintiff. The record discloses that the Kemp-West Motor Company and the plaintiff had for a number of years dealt with each other as per stipulation as follows: "There existed a general course of dealing between the Kemp-West Motor Company and the American Discount Company, as a result of which Kemp-West Motor Company had the authority to repossess and sell automobiles held by the American Discount Company on contracts which were in default and that Kemp-West Motor Company was accustomed to collect delinquent accounts for the American Discount Company as the agents of the latter." 1. On the general grounds Cooper contends that the evidence showed that the purchase-price of the truck had been fully paid to the Kemp-West Motor Company, the general agent of the American Discount Company, and that the debt to the plaintiff was thereby discharged, or that under such evidence an issue was raised for determination by the jury. To this we can not agree. It will be observed that the only payments by Cooper to the Kemp-West Motor Company, after the execution of the instrument sued on, was the $250 check and the $60 note. The credit memorandum of $700 was executed before the execution of the note sued on, and represented a debt due by the Kemp-West Motor Company to Cooper. Granting that the Kemp-West Motor Company was the agent of the American Discount Company to collect the note, the Kemp-West Motor Company had no legal authority to credit on the note which the American Discount Company then held a debt which Kemp-West Motor Company owed to Cooper. Stanfield v.Kennedy, 43 Ga. App. 738 (159 S.E. 880). "A payment to an agent by releasing his personal debt is not a payment to the principal." Bostick v. Hardy, 30 Ga. 836; Mitchell v.Printup, 68 Ga. 675; Hodgson v. Raphael, 105 Ga. 480 (2) (30 S.E. 416). See also Osborn v. War FinanceCorporation, 39 Ga. App. 42 (145 S.E. 917).

2. With reference to the special grounds, most of them are interrelated with the general grounds. Ground 5 complains that the court erred in directing a verdict because the instrument sued on was on a printed form, bearing the name of the plaintiff, and this should have been submitted to the jury to determine whether or not the Kemp-West Motor Company was such a representative of the plaintiff that the plaintiff could not recover under the evidence as above set forth. This ground is without merit.

3. Ground 6 complains that evidence as to the setting up of the $12 reserve should have gone to the jury in order that it might determine whether or not Kemp-West Motor Company was such an agent of the plaintiff as to relieve the defendant of any further payment. Under the evidence as above outlined, and what we have said about the general grounds, this ground is without merit.

4. Ground 7 complains that because of the long course of dealing between the plaintiff and the Kemp-West Motor Company the court erred in directing a verdict. There is no merit in this ground.

5. Ground 8 complains of error because the court refused to allow in evidence approximately 100 letters written by the plaintiff to the Kemp-West Motor Company in proof of the course of dealing as set forth in the stipulation above quoted. This could have added nothing to the stipulation. Moreover, the brief of evidence shows that the letters were admitted, although this ground of the motion for new trial states to the contrary. This ground is without merit.

6. Ground 9 complains that the court erred in directing a verdict for the reason that the attorney for the plaintiff assured Cooper that he would not be sued, and that this tended to show an admission on the part of the plaintiff that the note sued on had been paid before suit was filed. This ground is without merit.

7. Ground 10 complains that the court erred in directing a verdict because of the testimony of the defendant to the effect that he executed the note sued on with the intention of getting insurance on the truck, and that he had paid the note in full with the credit memorandum of $700, check for $250 and a note for $60; that the jury would have had the right to consider whether or not the Kemp-West Motor Company was such an agent of the plaintiff that these transactions with the Kemp-West Motor Company were payments to the plaintiff. The instrument sued on was negotiable, was transferred in due course for value before maturity, and this evidence showed nothing to the contrary. This ground is without merit.

8. Ground 12 complains that the court erred in refusing to allow the defendant to introduce a certified copy of count 2 of the indictment against Kemp. The brief showed that the court allowed the introduction of this evidence. This ground is therefore without merit.

9. Ground 13 complains that the court erred in not declaring a mistrial on the ground that II. H. M. Kemp of the Kemp-West Motor Company left the court-room and was not accessible as a witness, and that the defendant desired to prove by him the course of dealing with the plaintiff by the Kemp-West Motor Company, in order to establish general agency for the purpose of showing that the defendant was not liable to the plaintiff under the evidence above set forth. This ground is without merit for two reasons: first, the stipulation entered into fully covered this situation, and, second, the motion was not made until after the court had directed a verdict. The court did suspend for fifteen minutes to give the defendant an opportunity to procure the witness, which he did not do, and the court therefore did not err in refusing to order a mistrial.

10. Ground 14 complains that the whole evidence showed that if the defendant was due anything it was only $214.70. As above stated, from the facts of this case, on the hearing of this motion the court recognized this contention of the defendant, and conditioned his order on the motion on a reduction of the judgment to $214.70, besides interest. To this reduction the plaintiff acceded. This ground is without merit.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.