15 Ga. App. 464 | Ga. Ct. App. | 1914
The plaintiff in error filed a direct bill of exceptions to a judgment by default upon a promissory note, for $2,-138.50 principal, $99.75 interest, and $223.83 attorney’s fees. A consideration of the exceptions-to the inclusion of attorney’s fee's in the judgment is unnecessary, - the plaintiff having voluntarily written off the amount of the attorney’s fees; and the contention that there was no proper party plaintiff, for the reason that it does not appear whether the plaintiff is a corporation or a partnership, was abandoned in the brief. It is contended that the judgment was erroneous because there is no allegation in the petition that the defendants were indebted to the plaintiff in the amount of the judgment, and no allegation of indebtedness in any amount; and tli^t the note is not such an unconditional contract in writing as would authorize the-court to render a judgment by default.
1. When pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside (Civil Code, § 5959), but a judgment can not be set aside for any defect in the'pleadings or record that may be aided by a verdict,-or is amendable as a matter of form. Civil Code, §- 5960'.: Not only did the de
2. Exception is taken upon the ground that the note sued on was not an unconditional contract, but was expressly conditional, in that it contained the following provision: “This note is to be settled by the payment of $100 cash and the delivery of ten shares of stock in the Cosmopolitan Life Insurance Co. to I. E. Mundy, who is then to pay balance, provided said amount is paid promptly on maturity, otherwise full amount is due and payable.” It is insisted that it was error for the court to render the judgment without a finding of fact by the court, or by the verdict of a jury, as to whether the conditions had been performed. Since this stipulation as to the manner in which the note may be settled indicates that it was inserted for the benefit of the maker of the, note, and it provides that the payments to be made in such settlement shall be made “promptly on maturity, otherwise full amount is due and payable,” and since the note was not sued on until some time after its maturity, it would seem to be plain (and may be conclusively presumed, in the absence of a plea setting up compliance with the conditional promise, or a tender to comply which was refused) that the conditional stipulation had been supplanted by the unconditional promise, and that the latter alone survived. Taking this view of the matter, the trial judge, of course, did not err in entering judgment upon the promise to pay the sum of money fixed in-the unconditional promise.
In the ease at bar the holder of the note, after its maturity, had the right to exercise an election by asking judgment for the amount of the note. But, beyond that, the present case is much stronger than the Mosely case, supra, in that the note contains no condition that renders the duty to pay contingent, or tends to reduce the amount to be paid. There is no contingency under which the amount to be paid is to be less than $2,138.50. The part of the note which may be said to be conditional simply provides that when Strickland paid $700 and Mundy paid the balance, the obligation would be extinguished. So far as the holder of the note is concerned, there is but little difference in the part of the note which contains the unconditional promise and that part to which we may, perhaps loosety, refer as the conditional promise, for both provide that the bank shall be paid the sum 'stipulated in the note; and the statement that “upon the delivery of ten shares of stock in the Cosmopolitan Life Insurance Co. to Mundy,” he should pay the balance of the note remaining after the payment of $700 by Strickland, can well, be treated as a mere memorandum for the benefit of Strickland and Mundy, since the note itself provides that “the full amount is due and payable” unless Mundy pays the balance “promptly on maturity.”
Judgment affirmed.