179 Ga. 168 | Ga. | 1934
This was a suit by an indorsee of a principal note and two renewal interest coupons, secured by a deed to land. The defendant answered, pleading payment to a named corporation, which was the payee of the principal note, but not of the interest coupons in suit, although for the present it will be referred to simply as the payee. The defendant prayed for a cancellation of the notes and of the security deed. The defendant did not in 'specific terms allege that the payee was the agent of the plaintiff holder, but did allege that he had paid, in like manner, other interest coupons of the same series and of a previous series, after which the canceled
The main question for determination is whether the payee was the agent of the holder to collect the notes. The facts were as follows: On August 25, 1919, B. F. Guest executed a promissory note for the sum of $350, payable to the order of Sessions Loan & Trust Company, of Marietta, Georgia, and due December 1, 1924. He also executed five interest coupons payable in like manner,- and due on December 1 of each year of the loan period. To secure these notes and interest coupons he conveyed to Sessions Loan & Trust Company a tract of land in Atkinson County. The principal note as well as the interest notes were indorsed by the payee in blank and without recourse, and were delivered to Harry L. Winter Inc. soon after their execution. The name of Sessions Loan & Trust Company was later changed to Guaranteed Bond & Mortgage Company; but this fact is immaterial, and the company will be hereafter referred to either as the payee or the loan company. Harry L. Winter Inc. indorsed all of the notes in blank and without recourse, and delivered them to Hniversalist Convention of Yermont and Province of Quebec, a corporation. The Convention is the plaintiff in the present suit against Guest to recover on the principal note and two renewal interest coupons. It appeared from the evidence that the Convention acquired the principal note and the original interest coupons from Harry L. Winter Inc., by the indorsements last referred to, on or about September 10, 1919. During the original loan period the payee would give notice of the maturity of the interest coupons, and the defendant would remit to it accordingly. After each such payment the loan company would mail to the defendant the interest coupon marked paid. All of these payments reached the plaintiff as holder. Notwithstanding the notes had become the property of the Convention, yet at the maturity of the principal note an extension for an additional five
The facts stated above were established without dispute, except as to the time when the Convention acquired the notes. One witness, a former bookkeeper for the loan company, testified that the notes were owned by Harry L. Winter Inc. during the original five-year period, but a witness for the plaintiff testified that the Convention acquired the notes in 1919; and the jury could, of course, have found this to be the fact. We refer to the witness R. L. Richmond, treasurer of the plaintiff corporation, whose evidence related also to the question of agency. The entire testimony of this witness was as follows: “The Guest mortgage, amount $350, was taken, I believe, in 1919. On September 10, we paid for it $350 and accrued interest of $.72. Interest came along with fair
Under the evidence the jury were authorized to find that the loan company was the agent of the plaintiff for the collection of the notes sued on; and this is true despite the statement of the wit-’ ness that he did not think he ever authorized the company tb-' col-i lect for these notes, and that the company made the collections "without authorization from the Univetsalist Convention.” ■ The' jury were required to consider the evidence as a whole,' and were
The course of dealing between the plaintiff and the loan company can not be explained upon the theory that the latter was liable for the payment of these notes, and that the plaintiff was dealing with it on that account. The principal note was indorsed by the loan company without recourse; and it made no indorsement of the two interest coupons in the suit, as these were payable in the first instance to Harry L. Winter Inc., by which they were indorsed in blank and delivered to the plaintiff corporation. It appears that the loan company by some kind of agreement warranted the title to the notes. But the evidence failed to show any secondary liability or any other executory contractual relation between the loan company and the Convention, and disclosed no duty or obligation by the company whereby it should be prodded about collections and respond to the plaintiff’s demands during a period of years, unless the parties to such course of dealing intended to act upon the relation of principal and agent.
In the view which we take of the case, it is unnecessary to determine whether the failure of the loan company to mail to the debtor the interest coupon which matured in 1928, and for which he made
There is a suggestion in the brief of counsel for the plaintiff that the defendant did not sufficiently plead that the loan company was the agent of the plaintiff to collect these notes. The plea, however constituted enough to amend by; and there being no demurrer, and the evidence of agency having been admitted without objection, the verdict in favor of the defendant will not be set aside merely because the plea did not allege agency in express terms. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579). The evidence authorized the verdict, and the court did not err in refusing a new trial. Judgment affirmed.