8 Ga. App. 807 | Ga. Ct. App. | 1911
The partnership of W. E. & C. E. Johnstone sued the Etowah Milling Company for the balance claimed to be due on a promissory note for about $1200,. on which was a credit .of about $850. The defendant pleaded that after the giving of this note, it became financially embarrassed and offered a composition to creditors, by which they were to accept 50 per cent, of their claims in full payment, and that the plaintiffs, having accepted the composition, were bound by it; that under this agreement of. composition, the defendant shipped to the plaintiffs a car-load of its mill products to-be disposed of, with the understanding-that when the plaintiffs had retained enough of the proceeds to pay the 50 per cent, of the debt represented by the note sued on, they would ae^
Several exceptions are made as to the charge of the court. Considering it as an entirety, it is to be fairly construed as holding and as presenting to the jury with reasonable clearness this view of the proposition involved in the case: that the plaintiffs, by signing the proposition of composition, became bound by its terms, but one of its terms was that they should not be required to accept the 50 per cent, in full settlement, unless all other unsecured creditors likewise accepted; but that this acceptance of the other creditors could be evidenced otherwise than by their signing the writing; and that if all the others did accept the terms proposed in the agreement, the plaintiffs became bound to accept-the 50 per cent, of their claim in full settlement; that if one of these other creditors accepted the agreement but had not been paid the amount coming to him, this fact would not release the plaintiffs from the agreement, as that would merely afford a matter of controversy between the defendant and that particular creditor; that unless all the other creditors accepted the agreement or accepted payment under the agreement, the plaintiffs would not be bound by the proposition to accept the 50 per cent. We think that this correctly states the legal construction and effect of the contract. The slight ambiguity arising from the