113 Ga. 859 | Ga. | 1901
The Phenix Insurance Company of Brooklyn brought against Mrs. B. D. Hart an action upon promissory notes payable to the Southern Messenger Service, or order, to which the plaintiff claimed title as assignee. One of these notes was for a .stated principal sum, and the others were coupon interest notes. The main note contained a stipulation that a specified default in paying interest would, at the holder’s option, mature the whole debt; .and the petition alleged that such default had occurred. Mrs. Hart filed an answer which embraced nothing more than a general denial of theplaintiff’s demand, and averments of inability, from want •of sufficient information, to answer paragraphs which related to matters apparently within her personal knowledge, with no explanation of her alleged ignorance with respect thereto. This answer was met by a proper demurrer; and counsel for the defendant, evidently recognizing that the demurrer was good, filed, under leave of the court and subject to the demurrer, an amendment to the .answer. To this amendment counsel for the plaintiff demurred, both generally and specially; and the court, after allowing further •opportunity to amend, of which the defendant’s counsel declined to .avail themselves, passed an order striking the answer and rejecting the amendment, and also rendered a judgment in the plaintiff’s favor. The defendant thereupon sued out a bill of exceptions, specifically assigning error upon the order just mentioned, and in the most general terms complaining of the judgment. Briefly stated, the substance of the proposed amendment to the answer was : Defendant held a policy in the plaintiff company which she delivered to the Messenger Service to secure the payment of the notes sued on. The insured property was destroyed by fire, and the insurance company, under an agreement with the Messenger Service, by the terms of which proof of loss was dispensed with, paid to the Messenger Service the amount of the notes, which were delivered to the company and subsequently assigned to it without recourse on the Messenger Service. By reason of these facts and others set forth, the defendant was prevented from presenting to the insurance company, within sixty days afterthe occurrence of the fire, a proof of loss. The .acquirement by the insurance company of the notes in question was •an ultra vires act. In point of fact, the company did not purchase
Judgment affirmed.