53 Ga. App. 56 | Ga. Ct. App. | 1936
The First National Bank of Shellman sued Johnson on two promissory notes, alleging that he was indebted to it in the sum of $1029.38 as principal, besides certain interest, and ten per cent, attorney’s fees. Copies of the notes and of the notice of intention to claim attorney’s fees were attached. The plaintiff alleged that payment of the balance due on the notes had been demanded of the defendant, who refused to pay the same. One of the notes was for $261.70, dated January 16, 1931, and due on October 5, 1931. The other note was for $1690.99, dated November 1, 1930. This note was as follows, omitting the waiver of homesteád: “ On demand after date, I promise to pay to the order of First National Bank of Shellman at the office of the First Na
On the filing of the foregoing amendment, the plaintiff, without filing a new demurrer, renewed its previous demurrer, which was sustained, and an order was granted striking paragraph 3 of the original answer and all of the amendment. To this ruling the defendant filed exceptions pendente lite. At a subsequent term of the court, the plaintiff, by permission of the court, took a verdict and judgment for the full amounts sued for. The bill of excep
The pledgor of property has no right to require the pledgee to sell the property. Though the title to the property is in the pledgor, he parts with the power of disposition when he makes the pledge. When the pledgor requests the pledgee to sell, and the pledgee refuses, the loss from a decline in value of the pledged property thereafter occurring can not be charged against the pledgee, but falls on the pledgor. This has been held specifically with reference to cotton. First National Bank v. Haltaway, 172 Ga. 731 (158 S. E. 565, 77 A. L. R. 375). It is alleged that the plaintiff and the defendant agreed, for a consideration, that the cotton would be sold when the market price declined to the point where the value of the cotton would not exceed the amount of the debt. The plaintiff demurred to the plea as an effort to change the written contract. It was provided in the contract that the defendant should keep the cotton margined to the amount of ten per cent.; and that if he failed to furnish additional collateral on request, the note should immediately become due. Instead, then, of going through the ceremony of demanding additional collateral and failure to furnish it, why could not the parties agree that the cotton be sold as soon as the margin was exhausted? Under the written contract, the bank would not, on request, be compelled to sell; but if it agreed to do so, it should be held to its agreement. The plea does not show what Avas the consideration for the alleged agreement. It merely alleged that the bank through its president “contracted Avith” him, that the plaintiff “agreed and covenanted” Avith him, and that he relied upon the agreement “founded -upon a legal consideration.” But there was no special demurrer going to this. The special demurrer simply asserts that the plea is an attempt to vary the contract. It does not make the point that such a variation would have to be in writing. Written contracts are frequently varied by subsequent oral agreements. There is nothing sacred in this kind of contract which protects it from alteration by consent of the parties.
The pawnee is bound for ordinary care and diligence. Code of 1933, § 12-605. The answer raised the question as to the diligence of the bank. This is a question of fact properly determinable by a jury. The long delay in selling the cotton while
Paragraph 5 of the amendment alleges that certain items of expense were unlawfully paid by the bank. Although this claim was not specially demurred to, it is not maintainable, since the Code of 1933 § 12-607, provides that the pawner must pay all necessary expenses and repairs upon the property.
The court erred in sustaining the plaintiff’s demurrer to the amended answer.
Judgment reversed.