Daniel v. Browder-Manget Co.

13 Ga. App. 392 | Ga. Ct. App. | 1913

Pottle, J.

The fundamental error into which counsel for the plaintiff and the trial court fell was in ignoring all the defendant’s pleas except the plea of non est factum. General and special demurrers to the answer were filed. Upon these demurrers the court passed an order striking all of the answer except so much thereof as set up the defense of non est factum, “with leave to amend in ten dajs from this date.” Within the time allowed by the order the defendant amended his answer, and the amendment was allowed, “subject to objections.” No objection to the answer as amended was ever filed. The defendant sued out a bill of exceptions, complaining of the order striking his original answer with leave to amend (11 Ga. App. 789, 76 S. E. 166). If the fact that'he had acquiesced in this ruling by filing an amendment to meet the demurrer had been brought to the attention of this court when the case was before us on that bill of exceptions, it would have been held that by filing the amendment he had waived his right to except to the judgment requiring that the original answer be amended. But this fact was not brought to the attention of this court, and the exception was dealt with on its merits j it being held that the court properly sustained the demurrers to the original answer. As the defendant, in response to the order granting him leave to do so, filed an amendment, and no objections were made thereto, and no attack of any sort was made upon the answer as amended, the court should have considered the answer as amended, to determine whether it set forth any defense. Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (78 S. E. 902). The fact that he excepted to the order requiring him to amend and that his exception to the order was not sustained did not amount to a waiver of his right to amend, which was granted by the order sustaining the demurrers to the original answer. However, if the answer as amended did not set forth any defense, it was properly ignored, because it is not necessary that a formal motion be made to strike an answer which is bad in substance. Unless the plaintiff is estopped to call in question the sufficiency of the answer, he may do so by objecting to the evidence, or by asking for an instruction to the jury to disregard the answer, or in any other proper way in which the matter may be brought to the attention of the court. Hence, the instruction which the court gave thé jury, to the effect that the only defense which they need consider was that of non est factum, was proper, if the answer did not set forth any other valid defense. If it did, the instruction was erroneous and a new trial must necessarily result.

The answer as amended alleged that the note sued on was really never due to the American National Beverage Company, from whom the plaintiff acquired it, but that it was executed by the defendant and turned over to that company, with the understanding that it was not to become binding on the defendant until after he had examined into the affairs of the company and ascertained that the representations of its officers as to its financial standing were true. It is further averred that, as an inducement to the defendant to execute his note for stock in that company, it was represented to him that the company was capitalized at $400,000, with a paid-up capital of $100,000. It is further averred that, in consideration of the execution of the note, certain officers and agents of the American National Beverage Company promised to elect the defendant president of the company, at a large salary. It is also alleged that the American National Beverage Company was in fact insolvent when the note was obtained, unable to obtain credit, and was in bankruptcy at the time suit was filed; that it was not capitalized at $400,000 as represented and did not have a paid-up capital of $100,000. If all these things are true and the note was not in fact, as is alleged, due to the American National Beverage Company as a complete and binding obligation, but was simply to be held by it in trust until the defendant could ascertain the financial condition of the company, then the defendant had a good defense as against the company.

The allegations relied on to show that the plaintiff was not a bona fide holder of the note are loose and general; but in the absence of a special demurrer they are, in our opinion, sufficient to constitute a defense against the plaintiff. In the original answer it was alleged that the plaintiff conspired with the American National Beverage Company to fraudulently collect from the defendant the amount of the note. This was one of the allegations which was held to be indefinite and which the defendant was given leave to amend. In the amendment it is averred “that this note was taken by Browder-Manget Company at a time when the American National Beverage Company was unable to obtain credit, and that the said Browder-Manget Company is conspiring with the said American National Beverage Company to defraud the said H. T. Daniel out of the amount of this note.” -In other pleas .it is averred that the plaintiff, when.it took the note, did not pay full value for it, and knew that the American National Beverage Company was insolvent. A general charge of conspiracy and collusion is insufficient as against a special demurrer, but there was no objection of any kind to the answer as amended. In effect the defendant simply repeated in the amendment the general allegations of fraud which were contained in the original answer, and hence, if the amendment had been objected to, it should not have been allowed. No objections having been filed to the answer as amended, the general averments of fraud and collusion were sufficient to raise an issue upon which the defendant was entitled to be heard before a jury. If, upon another trial upon the pleadings as they now stand, he can establish his plea of non est factum or prove that the plaintiff colluded with the American National Beverage Company, which was insolvent, to defraud him, that he was deceived and defrauded by that company, and that the plaintiff participated in the fraud and conspired with that company to fraudulently collect from him the amount of the note, he would be entitled to prevail, otherwise not. Judgment reversed.