109 Ga. 778 | Ga. | 1900
Floyd filed a petition in the superior court of' Fulton county, making the City of Atlanta, A. W. Hill, marshal of the City of Atlanta, Venable Brothers, and the Atlanta Banking Company parties defendant, in which it was sought-to permanently enjoin the defendants from enforcing against-the petitioner certain alleged contracts to pay a portion of the-cost of paving the roadway on North Butler street in the City of Atlanta on which real estate belonging to petitioner had a frontage, said contracts being then held by the Atlanta Banking Company. The evidence and admissions of the parties-made this case: On February 25, 1895, an ordinance was-passed by the authorities of the City of Atlanta providing for the paving of North Butler street between its intersection with Edgewood avenue and Jenkins street, and assessing two thirds-of the cost on owners of abutting real estate. On July 1, 1895r in pursuance of said ordinance, the City of Atlanta entered into a written agreement with the Standard Paving Company for the construction of such paving. The contract was as-follows:
“Georgia, Fulton County. This agreement, made and entered into this 1st day of July, 1895, between the City of Atlanta, a municipal corporation under the laws of the State of Georgia, party of the fiikt part, and the Standard Paving Company, a corporation under the laws of Georgia, party of the second part, both of said county, witnesseth, that the said party of the first part, on petition of the citizens owning more than one third of the real property abutting on Butler street between Jenkins and Edgewood avenue, for the paving of said Butler
“In consideration of the du'e and thorough performance of said contract by said party of the second part, the City of Atlanta covenants to pay said party of the second part, upon the completion of said work and its acceptance by the city engineer and commissioner of public works, the sum of two thousand, six hundred and twenty-eight ($2,628.00) dollars, or such larger or smaller sum as may be chargeable to or against the city, upon the final estimation of said paving, at the contract
“The City of Atlanta, by Porter King, Mayor.
“Standard Paving Company, by B. F. Thomas, President.”
Under this contract, the Standard Paving Company began work about the first of July, 1895, and turned over the street to the agents of the city in a finished condition about the last of August, 1895. On February 20, 1895, Floyd filed a written protest with the city council against the paving of Butler street, and said protest was brought to their notice and acted on by them adversely before the work was begun or the contract with the Standard Paving Company entered into. On or about September 5, 1895, a demand was made upon Floyd by "the’tax-collector of the city, that he pay his proportion of the said assessment, one hundred and seventy-six dollars and forty-four cents; whereupon Floyd paid one fourth of that amount in cash, and signed three written instruments, a copy of one of which is set out below; the transaction having taken place before the question of the liability of abutting property owners for the assessment had been submitted to the courts. The three writings were similar in all respects, except that the date of maturity was different, that of the first being September 5,1896, of the second, September 5, 1897, of the third, September 5, 1898; the first of which is as follows: “B. R. No. Note No. Atlanta, Ga., Sept. 5, 1895. Whereas, by an act of
[Signed] B. F. Floyd. (Seal.)”
These written instruments were delivered to the tax-collector and were transferred to the Standard Paving Company. Shortly after, they were endorsed and transferred to a partnership, company of W. H. and S. H. Venable, entitled Venable Brothers, the following indorsement being written on the back: “Pay'
If the question as to whether the plaintiff in error was liable to pay the assessments made on him for the paving of North Butler street was involved, it would, under the authority of City of Atlanta v. Smith, 99 Ga. 462, be readily answered in the negative. Nor could it be held under the facts of this case that the defendant in error was such a bona fide purchaser of the obligations of Floyd as would exclude the defenses which existed between the maker of the instruments and the City of Atlanta at the time of their execution. The form of the instruments does not give them the character of negotiability by delivery or indorsement, and their nature necessarily puts upon the holders of them notice of the consideration for which they were given,
As a general rule, a promise to pay upon a supposed liability