72 Ga. 807 | Ga. | 1884
• Williams’ Sons sued Partridge upon a promissory note for $1,250.00, interest from date at 8 per cent. The jury, under the charge of the court, found for the plaintiffs the principal and interest. No motion for a new trial was made, but the case comes before this court upon assignments of error in the charge of the court. The facts are, substantially, that the note sued on was payable to Hartwell or bearer, and by him transferred before due to Welch & Bacon, and by them was placed in the hands of plaintiffs as collateral security (among many others), before due, to secure a large sum of money Welch & Bacon had borrowed from Williams’Sons at 1 to 1£ per cent per month interest; that Partridge had large effects in the hands of Welch & Bacon when the note fell due, and called to pay it out of these effects, but ascertained that it was out of their hands as collateral security, and it was not paid that the debt owing by Welch & Bacon was renewed to Williams’ Sons, they still holding this collateral, to fall due in February, 1881; that Welch & Bacon broke in December, 1880, still in debt to Williams’Sons a large amount, and still in pos-, session of effects due to Partridge; that when Williams’ Sons renewed the note with Welch & Bacon and^retained the collaterals, this among others, it was known to them and to Welch & Bacon that many of the collaterals were worthless, having been paid, but no mention was made of this note sued on here, which had not been paid.
Upon these facts the court charged.the jury, and exception is taken, and error is assigned upon portions oP that charge; and the question is, did the court err on any of these assignments which are material to the issue ?
1. The court charged to the effect that if prior holders the payées or those from whom the plaintiff's got the note sued on, had funds in their hands sufficient to pay it, but had not appropriated it in payment, it would not amount to payment as against a party who got the note for value
The portion of the charge, of which the above is the substance, is excepted to, and assigned for error, on the ground that it is not applicable to the pleadings and evidence; that anote taken after maturity is subject to all the equities between the original parties; and that a renewal of the debt due plaintiffs by Welch & Bacon, adding in the interest to maturity, and giving a new note therefor after the maturity of the note sued on, was a new contract, and the note sued on was subject to all the equities existing between defendant and Welch & Bacon at the time, whether plaintiffs had notice of them or not.
But we think the mere renewal of a note at the same rate of interest is not a novation. No new party is added, and no new consideration passes. Code, §§2153, 2724, 2878; 51 Ga., 177.
It follows that this collateral to secure this debt was placed in the hands of the plaintiffs before due, because the debt was the same debt; there was no novation or change in it, but a mere renewal of the identical indebtedness of Welch & Bacon to plaintiffs, to secure which the note of defendant was turned over as collateral to plaintiffs before it was due. If the plaintiffs got the note before due, of course they took it free from all defences which the defendant may have had against Welch & Bacon, and his sets-off against them cannot avail against this collateral holder without notice, before due, any more than those defences would be good against a purchaser for value, before due and without notice. Code, §2788; 3 Ga,., 47; 22 Id., 246 ; 57 Id., 274 ; 60 Id., 654. Therefore, even if any portion of the long part of the charge be objectionable—which we
And the second assignment of error, on the 7th segment of the charge excepted to., is the same, substantially, as ruled above, and is controlled by what has been said.
2. The next and only other assignment of error is, that the court erred in charging that the fact that Welch & Bacon were paying usurious interest to plaintiffs did not render their title to the note as collateral security of that usurious debt void. Assuredly the security is good to pay the legal part of the debt which Welch & Bacon owed to plaintiffs. Even in cases of deeds to land or other property not under the law-merchant, this court has held that, while the deed or bill of sale would not be good to pass title, if affected with usury, yet it would be good as security to pay the principal and legal interest. Williams’ Sons could recover of Welch & Bacon all they owed them, except the usurious interest; and it would be strange if, when Welch & Bacon turned over to them anote .with no tincture of usury in it, they could not recover from the maker of that note as much as they could from Welch & Bacon. The note, therefore, is good to be collected and applied to the payment of the principal and legal interest due plaintiffs by Welch & Bacon, all of which, it is not pretended, does net far exceed the note sued on, when stripped of all usurious interest. Eight per cent is the lawful interest, and if one take more, he forfeits the excess beyond eight per cent. Acts of 1878-9, p. 184 ; Id. 1880-1, p. 149 ; Code, §§2057 (a), 2057 (b).
Formerly banks forfeited the whole debt; but that penalty is now repealed. Acts 1873, p. 52 ; Code, §1474. See also Caswell vs. The Central Railroad and Banking Company,50 Ga., 70.
The language of the Code, in respect to titles to property affected with usury, is: “All titles to property made as a
Under these rules of law, the facts in this record demanded this verdict, and thejudgment must be affirmed.
Judgment affirmed.