141 Ga. 565 | Ga. | 1914
(After stating the foregoing facts.)
The amendment which was stricken alleged, in substance, as follows: The defendants proceeded to perform the other terms of the contract beside the payment of $5,000 by a certain date, and did comply with such terms in a manner accepted by the plaintiff until the eighth day of June, 1911. While the taxes and insurance were not always paid as early as they became due, yet, prior to the giving by the plaintiff of any notice of its intention to proceed to collect the indebtedness, and prior to the filing of the suit, all insurance on the property formerly known as that of the Etowah Milling Company and all taxes had been paid fully, and nothing was due thereon. The Mulhern notes were given by the maker for rent of property which was later sublet, and the sublessee reg
It was contended, that, in the course of the execution of the contract, the parties had departed from its terms, that they had paid and received money under such departure, and that, before either could recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of the intention to rely on its exact terms. Civil Code (1910), § 4227. The contract contained two distinct provisions authorizing the bank to proceed. The first was that, if the Mulhern notes were not paid promptly as they matured, the bank was not bound to extend the time for payment of the debts described in the contract. The other related to the insurance, taxes, etc. The allegations were to the effect that the insurance and taxes had not been paid promptly, but they had been paid in full and in a manner accepted by the bank as a compliance with the contract in that regard up to the time when a notice of intention to proceed to collect was given. If there had been a departure from the exact terms of the contract on this subject, mutually accepted as amounting to a compliance, probably the bank would not have been authorized to declare the contract at an end, on that ground, without giving notice to Brooke that he must thereafter comply strictly with its terms. But as to the Mulhern notes, the allegations did not show any waiver of their prompt payment by accepting payments after the dates when they respectively matured, as being a compliance with the contract, or as creating a waiver by means of mutual departure from the strict terms of the contract. So that on that subject no notice of a requirement of strict compliance was necessary, but by the very terms of the contract the bank was not obligated to extend the debts of Brooke. True it was alleged that the notes were given by Mulhern for rent, and passed into the hands of Brooke and from him .to the
While it may be, as a general'rule, that objection for nonjoinder of a necessary party appearing on the face of the petition should be raised by demurrer, yet where the sworn answer duly filed, which set up such defense, was demurred to on the ground that it presented no good and sufficient defense to the petition, and this demurrer was sustained, if in law the defense of nonjoinder was good, the erroneous ruling will not be affirmed by this court on the ground that the point should have been presented by demurrer or plea instead of being included in the answer. While it appears from the recitals in the exceptions pendente lite that, in addition
■ Contentions were made, in the reply brief of counsel for the defendant in error, that the defense of nonjoinder was included in the answer, that it did not conclude with a prayer for an abatement of the action, and that it did not show that the Lowry National Bank of Atlanta was within the jurisdiction of the court. The primary difficulty about these contentions is that they do not appear to have been properly raised in the court below. As we have stated, the ruling invoked by the demurrer and made by the court was in substance that the Lowry National Bank was not a necessary party. Whether the pleading or part of the pleading setting up that particular defense had a proper caption or ended with a proper prayer was not the point ruled by the court below. Moreover, the plaintiff’s own petition refers to the Lowry National Bank of Atlanta as being of Fulton county, Georgia. Furthermore, this defense does not go to an abatement of the entire action, but t'o that part of it which involves the title, and not the part which is based solely upon a suit on the note. It is especially true in the present case that the judgment can not be affirmed, as the answer alleged that the security deed was made to the two banks jointly, and that the bank which was not a party to the case still held one of the purchase-money notes, on which there" was a balance of several thousand dollars due, and that such bank was a necessary party to any suit seeking to establish or declare a lien on the land for the purchase-money. This allegation went beyond what appears on the face of the plaintiff’s petition, and alleged the affirmative fact that the other bank still held an unpaid note.
Counsel for defendant in error urged that the evidence showed that the plaintiffs in error were estopped, by facts appearing in evidence, from setting up the defense above indicated. The court did not rule on the effect of the evidence, but, on demurrer, struck the defense set up by the answer on this subject. The defendants in the court below were thus cut off from trying the issue as a qopstion of fact.
It appeared that, shortly after Strickland and Brooke gave the note in suit and others for the purchase of the mill property, the Biverside Milling and Power Company was organized, of which Brooke was the chairman of the board of directors, and the executive officer; and Brooke testified that, in its organization, the company assumed the payment of the note now sued on, and paid the interest which was paid upon it up to the time the agreement was made between Brooke and the plaintiff in 1909.' The principles above announced were hot changed, whether Brooke and Strickland individually paid the interest from their own funds, or whether a corporation was- organized, agreed to pay the note, and, under the agreement with Brooke and Strickland, did make the payments of interest which they had agreed to make.
While the resolution above mentioned stated that the increased rate of interest should be calculated from January 1 preceding its passage, the evidence of the president and the vice-president of the bank showed that it was in fact calculated at six per cent, until June 30, 1907. So that, if it would have been usurious to require payment of an increased rate of interest for the period already elapsed, this became immaterial in the light of the evidence.
There is no merit in the contention that the resolution did not apply to the transaction under consideration, but 'apparently referred to some different matter.
It was suggested in the brief of counsel for defendant in error, that, if this court should hold that the plaintiff was not entitled to have a lien established on the property, or an interest in it, because-the Lowry National Bank of Atlanta was not a party, the general judgment might be affirmed, with proper direction as to the matters indicated. But from what has been said above it will be seen that there were other errors; and we can not determine, from an inspection of the verdict and judgment, that they were harmless.
Judgment reversed.