Flood v. Empire Investment Co., 35 Ga. App. 266

Flood v. Empire Investment Co.

35 Ga. App. 266 | Ga. Ct. App. | 1926

Bell, J.

(After stating the foregoing facts.) We hardly think that the proposed amendment to the bill of exceptions is necessary. See Civil Code (1910), §§ 6183, 5205; Whitfield County v. Hogan, 17 Ga. App. 685 (87 S. E. 1087); Phelps v. Belle Isle, 29 Ga. App. 571 (5) (116 S. E. 217); Federal Life Ins. Co. v. Walton, 34 Ga. App. 694 (1) (131 S. E. 90); Gunn v. Wood, 99 Ga. 70 (24 S. E. 407). But whether so or not, the judgment excepted to having expressly said that the certiorari was “overruled,” the plaintiff in error, since he desires it, should be allowed to amend the bill of exceptions so as to make it conform with technical accuracy to the judgment. Practically the same thing was ruled in Hunnicutt Co. v. Kane, 21 Ga. App. 665 (1) (94 S. E. 821). See also Parks *269v. Johnson, 79 Ga. 567 (2) (5 S. E. 243); Ramey v. O’Byrne, 121 Ga. 516 (1) (49 S. E. 595); Civil Code (1910), § 6184.

2. With the bill of exceptions amended, there can be no doubt (if there ever was any) of the sufficiency of the assignment of error on the judgment on the certiorari. Meeks v. Carter, 5 Ga. App. 421 (63 S. E. 517) ; Buchman v. Rogers, 29 Ga. App. 62 (1) (113 S. E. 230); Chandler v. Reeves, 26 Ga. App. 167 (1) (105 S. E. 724); Phoenix Ins. Co. v. Gray, 107 Ga. 110 (1) (32 S. E. 948); Barker v. Marietta Guano Co., 112 Ga. 305 (1) (37 S. E. 379); Glenn v. Shearer, 44 Ga. 16 (3).

3. The complaints in the petition for certiorari that the court erred in not allowing the defendant to answer certain questions propounded by his own attorney are, for the most part, imperfect, because the court was not informed at the time what answer was expected. Griffin v. Henderson, 117 Ga. 382 (2-3) (43 S. E. 712); Smith v. Barr, 32 Ga. App. 53 (122 S. E. 626); Tinsley v. State, 32 Ga. App. 444 (2) (123 S. E. 622); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (3) (64 S. E. 703). Error was perhaps sufficiently assigned on the exclusion of a certain document. But to pass over all exceptions to the exclusion of evidence, either oral or documentary, there was enough evidence admitted without objection to make an issue for the jury as to whether the defendant’s plea was true, and the court erred in directing the verdict. We have not set out the evidence and will not discuss it, because the principal difference between counsel seems to be on whether, in view of the stipulations of the writing, parol evidence was admissible to establish the defendant’s claim of a usurious loan, and because the case appears to have turned on this question both in the municipal court and in the superior court, each of them seemingly having agreed with counsel for the plaintiff that the answer to the question should be in the negative.

It is .a well settled rule that, in the absence of fraud, accident, or mistake, parol evidence is ordinarily inadmissible to vary the terms of a written contract. This, however, is not true where the contract out of which the suit arises is tainted with usury, and that fact is sought to be shown. In Brown v. Bonds, 125 Ga. 833, 838 (54 S. E. 933) the Supreme Court said: “If this instrument, which was signed by both.parties, correctly sets forth the agreement between them, then the two writings evidence a sale and *270conveyance of the land, with an option to the vendor to repurchase it within a designated period. Felton v. Grier, 109 Ga. 320. No mention is made of a loan. However, if a loan was in point of fact made, and these writings merely furnish the cloak of a usurious transaction, then the truth may be shown by parol.” And in Virginia-Carolina Chemical Co. v. Provident &c. Life Assurance Society, 126 Ga. 50 (6) (54 S. E. 929), it was held: “If a transaction is on its face usurious, it may he so declared as a matter of law. If on its face it is not usurious but is claimed to be a device to cover up the charging of usury, a question of fact as well as one of law is involved.” In Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (6) (50 S. E. 402), it was ruled that “While a valid written contract can not be contradicted or varied by parol, it is competent by such evidence to show that the writing is but a cover for usury, penalty, or forfeiture,” and in the opinion it was said: “Nor does this mean that the vendee will be permitted to evade the rule that one can not by parol contradict or vary a valid written instrument. Civil Code, § 5201 [Civil Code of 1910, ■§ 5788]. Even parol testimony is admitted to enable one to show that a written instrument is not valid, but void. Civil'Code, § 5203 [Civil Code of 1910, § 5790]. It is always permissible to show that a paper is but a cover for usury, penalty, forfeiture, or other illegal advantage to one of the parties. For if the law did not sedulously disregard form and seek for" substance, nothing would be easier than its evasion by giving innocent names to prohibited acts.” In the very recent case of Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (132 S. E. 221), the Supreme Court, speaking through Mr. Chief Justice Bussell, said.: “The ingenuity of man has not devised a contrivance by which usury can be legalized, if it appears that the purpose of the scheme was to exact a larger profit for the use of the money actually advanced than eight per cent, per annum. In determining* whether the contract is usurious the substance of the transaction will be critically inspected and analyzed, for the name by which the transaction'is denominated is altogether immaterial if it appears that a loan of money was the foundation and basis of the agreement which is under consideration.” See also Fulwood v. Leitch, 7 Ga. App. 359 (66 S. E. 987); Kennedy v. Baggarley, 15 Ga. App. 811 (1) (84 S. E. 211); Haley v. Covington, 19 Ga. App. *271782 (2) (92 S. E. 297); McDaniel v. Bank of Bethlehem, 22 Ga. App. 223, 233 (95 S. E. 724); Kelley v. Ramey, 25 Ga. App. 28 (102 S. E. 455); Dwelle v. Blackwood, 106 Ga. 486 (1) (32 S. E. 593); Rogers v. Blouenstein, 124 Ga. 501 (52 S. E. 617); Pope v. Marshall, 78 Ga. 635 (2) (4 S. E. 116); Baggett v. Trulock, 77 Ga. 369 (2) (3 S. E. 162); Jackson v. Johnson, 157 Ga. 189 (1) (121 S. E. 230); Ferrell v. Greenway, 157 Ga. 535 (2) (122 S. E. 198); McLamb v. Phillips, 34 Ga. App. 210 (129 S. E. 570).

The defense should not have been excluded on the ground that the written agreement was not subject to the parol attack for the purpose of showing that it was a mere scheme or device for the exaction of usury rather than what it purported to be. This ruling does not in any sense conflict with those decisions to the effect that an assignment of salary by an employee, when made bona fide for value, is a valid and enforceable agreement. See Covington v. Rosenbusch, 148 Ga. 459 (1) (97 S. E. 78); Central of Ga. Ry. Co. v. King, 137 Ga. 369 (73 S. E. 1093); King v. State, 136 Ga. 709 (71 S. E. 1093); Jackson v. Johnson, 157 Ga. 189 (2) (121 S. E. 230); Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (124 S. E. 813). The defense in the present case was to impeach the bona fides of the transaction, and was meritorious, if the jury believed it. We are not to be understood as holding that an assignment of salary even to secure a usurious debt would not be valid as to the principal. See Ga. L. 1916, p. 48; Park’s Code Supp. §§ 3438, 3438 (a); Jackson v. Johnson, supra. That question is not involved. The contention here is that the entire debt has been paid.

The superior court erred in not sustaining the certiorari.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.