346 S.E.2d 89 | Ga. Ct. App. | 1986
On August 17, 1984 Alberta Goldberg executed and delivered to Youssef Mouna a 30-day promissory note in the principal amount of
Goldberg’s sole defense to Mouna’s prima facie case for recovery of a money judgment was her assertion that her transfer of the stock satisfied her entire obligation under the terms of the note. In granting Mouna’s. summary judgment motion, the trial court found that it would be unfair to allow Goldberg “to erase the debt after default and the expense of attorney fees by making a belated tender of stock which has an uncertain value.” We affirm for the following reasons.
In our view the language of the note clearly provided that either payment in cash of the principal and interest or transfer of Goldberg’s 500 shares of Cradle & All, Ltd. was due no later than November 14, 1984, time being the essence of the agreement by express stipulation. See Dulock v. Shiver, 239 Ga. 604 (238 SE2d 397) (1977). See also Smith v. Bryan, 34 Ga. 53, 64 (1864). Even assuming the note could be construed as having fixed no time for the transfer of the stock in the event of default, performance must have been within a reasonable time. See Evans v. Brown, 196 Ga. 634, 638 (27 SE2d 300) (1943). “Generally what is a ‘reasonable time’ is a question to be passed upon by the jury, in the light of the facts of the particular case, under proper instructions from the court [cit.]; but where the facts are undisputed and different inferences cannot be drawn from the same facts, the question of what is a reasonable time is one of law for determination by the court. [Cits.]” American Realty Co. v. Bramlett, 25 Ga. App. 159 (2) (102 SE 873) (1920). Although Goldberg was unable to come up with the cash for timely payment of the note, she also made no attempt to satisfy her obligation by the transfer of the stock until more than ten months after default on the
Judgment affirmed.