47 Ga. App. 571 | Ga. Ct. App. | 1933
Lead Opinion
“Upon tlie party alleging that a judgment is erroneous is the burden of making it appear to the reviewing court that material error was in point of fact committed; and when the record of the proceedings sought to be reviewed is so confused or imperfect as not to disclose the alleged error, the judgment is to be presumed right and will be affirmed.” Gairdner v. Tate, 121 Ga. 253 (48 S. E. 907); Grier v. Brown, 118 Ga. 670 (45 S. E. 455). The plaintiffs in error (defendants in the court below) assign error on their exceptions pendente lite, filed and
The plaintiff sued the two defendants who are plaintiffs in error, as sureties, jointly with another as principal, on an open account for goods bought by the principal under a contract signed by the principal and the sureties, a copy of which is attached to the petition. Under the contract, goods were to be purchased by the principal from the plaintiff corporation, and resold by the principal on his own responsibility and not as agent of the plaintiff ; any instructions or literature which might be furnished by the plaintiff to the principal were to be deemed only advice and suggestions, in no way binding on the principal or modifying the written contract; and the written agreement was designated as the only contract, which could not be modified except in writing signed by both the principal and the plaintiff with the latter’s corporate seal affixed. No contention was raised, as in Rawleigh Co. v. Salter, 31 Ga. App. 329 (120 S. E. 679), and in Etheridge v. Rawleigh Co., 29 Ga. App. 698 (116 S. E. 903), that, the contract being one of guaranty and not of suretyship, the parties signing the contract as guarantors could not be joined as defendants with the principal debtor.
(a) The first defense in the amendment to the answer alleged that the contract sued on was illegal, contrary to public policy, and unenforceable, in that it was a subterfuge by the plaintiff corporation for the purpose of evading, and having the party named as principal evade, the peddling license and tax laws of the State; that the purpose of “the language embraced in said contract, which was prepared by the plaintiff corporation, was to evade and avoid the payment of a license tax to the State of Georgia and
(5) The 2d and 3d paragraphs of the last amendment to the answer quote the provision of the written contract that the buyer (the party signing as principal) “is in business for himself, and that the seller [plaintiff] does not undertake in any way to control buyer in the conduct of his business,” and set up that when
(c) The 4th paragraph of the amendment alleges, that, “in addition to the explicit instructions given to the said [principal] by and through their authorized agent and representative [named], plaintiff corporation placed in the hands of the said
(d) “A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken on demurrer.” Carroll v. Hutchinson, 2 Ga. App. 60 (58 S. E. 309). The 5th and 6th paragraphs of the amendment merely by legal conclusions add to the preceding averments a charge of “fraudulent collusion” between the plaintiff and the principal, in selling “products indiscriminately to various consumers whose names are unknown to these defendants, the identity of the products sold being unknown to these defendants, the aggregate amount of such products so sold being unknown to these defendants, without the payment of the cash;” that “such credit sales were made by reason of a
(e) Nor did the 7th and 8th paragraphs allege defenses good against the special demurrers, containing grounds similar to those attacking other paragraphs. The 7th paragraph alleges “upon information and belief” that the plaintiff “has failed and refused to accept from the said [principal] the return of a large quantity of products which were returned to them by the said [principal], and for which they have failed to allow any credit, the amounts thereof, the dates the same were returned, a description of said merchandise, all being unknown to these defendants.” The 8th paragraph contains the mere charge and general conclusion, that, “by reason of the facts stated in this answer, these defendants allege that the plaintiff corporation has perpetrated an actual fraud against them, in that they have made no bona fide effort to carry out the plain written terms of the contract with the said [principal], and that by reason thereof these defendants, for having their risk increased without their knowledge and consent, are-discharged from said contract.”
The judge did not err in striking the affirmative defenses filed in the answer as amended, and, on the trial of the issue made by the defendants’ general denials (left unstricken in their original answer), in directing a verdict and entering a judgment in favor of the plaintiff for the amount sued for; there being no assignment of error with a brief of evidence so as to raise any question except the striking of the special defenses.
Judgment affirmed.
Rehearing
Movants contend that the court, in divisions 2 and 2(a) of the syllabus, overlooked Hentz v. Booze, 8 Ga. App. 577 (70 S. E. 108), and Roberts v. Arnall, 9 Ga. App. 328 (71 S. E. 590), and the elementary rule stated in those cases that parol evidence is admissible to show that the object or consideration of a written contract, lawful on its face, was in fact illegal. That principle was not overlooked, but is without application under the allegations made in the answer. “When a contract is valid upon its face, or, when taken in the light of the circumstances surrounding the parties at the time it was entered into, appears to be valid, it is incumbent upon him who attacks the contract to show its invalidity.” Wright v. Vaughan, 137 Ga. 52 (72 S. E. 412). It is true that, in determining whether a contract is illegal or immoral, the substance of the true agreement as shown by parol may control, notwithstanding the form and words expressed in the writing. But the illegality must be mutual between the parties, and the illegal intention must be common to both. Mere unlawful intent on one side only will not invalidate the agreement. See Mechanics Realty Co. v. Leva, 16 Ga. App. 7 (84 S. E. 222); 13 C. J. 517, 772. The first defense charges that the contract is illegal in that it “is a subterfuge resorted to by the plaintiff corporation for the purpose of evading license tax laws and the peddling license laws of the State of Georgia.” As pointed out in the original opinion, “the averments of this defense . . fail to show that the party signing as principal or any of the other defendants signing as sureties joined in the illegal intention of plaintiff." In the absence of such a showing, the original purpose of the plaintiff would be ineffective.
It is also contended that the court overlooked other defenses, not seeking to contravene the parol-evidence rule, that, after the making of the original contract (upon which suit was brought), the risk of the defendant sureties was increased, so as to release them from liability under the written contract, by reason of the subsequent giving of instructions to the principal as to how he should violate the peddling laws of the State, conduct his business in a territory larger than that provided in the contract, and sell on credit instead of for cash, as required by the contract. “A subsequent illegal agreement will not affect a prior lawful one between the same parties.” 13 C. J. 511.
The defenses were defective, not only in failing to show mutuality in the alleged illegal purpose of the contract, but also in failing to set forth necessary facts as to how and why the agreement was illegal, or the necessary facts to show a valid new agreement, or other acts and conduct sufficient to release the defendant sureties from liability under the original contract.
Rehearing denied.