42 Ga. App. 24 | Ga. Ct. App. | 1930
Lead Opinion
Phcenix Mutual Life Insurance Company brought suit May 15, 1928, against B. H. Manry, on a note in the sum of $2,500 representing the principal, and on an interest-coupon note in the sum of $150 representing the interest on the principal, each note on its face being due December 1, 1927, together with interest on each note from the date of its maturity, and attorney’s fees at 10 per cent, on the principal and interest, as contracted for in the note. The defendant pleaded payment of the interest represented by the coupon note, and in abatement of the suit pleaded an alleged agreement between him and the plaintiff, made prior to the maturity date of the interest coupon, for and in consideration of the payment of this note by the first day of December, 1927, and other considerations, by which the plaintiff agreed to an extension of the time of payment of the principal note to the first of December, 1928. The defendant pleaded also an alleged tender, made before the return day of the suit, of the amount of the principal note together with interest thereon from its facial maturity date of December 1, 1927. The jury found for the defendant upon the plea of payment, and found for the plaintiff in the sum of the principal note $2,500, with interest thereon in the sum of $250 from December 1, 1927, to the date of the verdict, and $275 as attorney’s fees upon the principal and interest thus found. The effect of the verdict was to find against the pleas of abatement and of tender. The defendant made a motion for a new trial, which was overruled, and he excepted.
1. The alleged agreement extending the time' of payment was contained in two letters to the defendant appearing in the record, which read as follows: (1) “Mr. Benjamin H. Manry, Goggansville, Georgia. Dear Sir: We have your favor of 7th inst., which
Neither of these letters is dated. We assume that these letters contain an offer to extend the date of maturity of the principal, which, if accepted, would constitute a contract. Whether the defendant had paid the interest-coupon note which was due December 1, 1927, payment of which on or before December 1, 1927, or November 11, 1927, according to the proper construction to be placed upon the alleged agreement, would, it is alleged, extend, the maturity date of the principal note for a period of one year, the-evidence is silent as to when this note was paid. The burden was upon the defendant to establish the agreement extending the maturity date of the principal note, by showing that the interest-coupon note due December 1, 1927, was paid on or before the date stipulated in the alleged agreement as a condition precedent to the extension of the maturity date of the principal note. Hpon the failure of the evidence to show the date of payment of this interest-coupon note, the evidence was insufficient to establish the defendant’s plea in abatement, which alleged that the suit on the principal note was prematurely brought, i. e. before its maturity as agreed upon by the alleged extension agreement. And if an agreement was made upon a consideration of the payment of the interest when due, it was a nudum pactum. Holliday v. Poole, 77 Ga. 159 (2).
2. The only evidence adduced in support of the defendant’s plea of tender of the amount of the principal note, together with interest thereon from the date of its facial maturity to the date of the tender, was a tender to the plaintiff’s attorney of a check drawn by the defendant for the full amount of the principal and interest, in the sum of $2595, upon a bank in which the defendant did not at that time, or ever afterwards as far as the record discloses, have funds sufficient for its payment. The amount of the check included the principal, $2500, and interest in the sum of $95 from December 1, 1927, to May 12, 1928, the date of the alleged tender. This tender, having been made before the “return day” of the term of court to .-which the suit was brought, viz. May 15, 1928, would, if legal, operate, to relieve the defendant of liability for the attorney’s
Whatever may have been the right of the defendant, if there had been any, to make a valid legal tender in the form of a check, no tender representing a sum of money due under a contract, whether
The evidence being insufficient to establish either the defendant's plea in abatement or his plea of tender, the verdict for the plaintiff in the full amount of principal and interest sued for, together with attorney's fees, was demanded, and the court did not err in overruling the defendant’s motion for a new trial upon both general and special grounds contained therein.
3. No brief of the evidence appears in the record in this court. The defendant in the trial court, who is the plaintiff in error here, failed to specify the brief of the evidence as a material part of the record, and the clerk of the trial court properly omitted the brief of evidence from the record here presented. As the plaintiff in error appears for himself in this court in propria persona, and has himself prepared the law brief here filed in his behalf, this court can, without injustice to him, adopt, for the purposes of this decision, his own statements as to the contents of the brief of evidence, as contained in his law brief. This we have done, and we have concluded that, under the facts as contended for by him, the judgment of the trial court should be affirmed.
Judgment affirmed.
Rehearing
ON MOTION ROR REHEARING.
The plaintiff in error, in a motion for a rehearing, has requested this court to order that a copy brief of evidence be sent up, and to consider the case in the light of the evidence as it appears in the brief of evidence. In the motion for rehearing it is stated: “In the decision rendered in this case, plaintiff in error respectfully contends that this honorable court has discussed and ruled on evidence that is not in the record of this ease, as to no funds being in the bank to pay the check tendered. There is no brief of evidence in the record, and therefore the court has gone outside of the record on file in rendering its decision in said case." The statement of the plaintiff , in error that the court has gone outside of the record and “has discussed and ruled on evidence that is not in the record” is not correct where this court treated, to all intents and purposes, as part of the record here presented his own version as to the evi
Rehearing denied.