35 Ga. App. 431 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) If the obligation sued on was conditioned upon the subsequent collection by the defendant of the debt represented in what is described as note number 2, the court erred in directing a verdict for the plaintiff. The authorities are uniform to the effect that a promise which does not pledge the promisor’s credit, but which limits the obligation to payment out of a certain fund, collected or to be collected, is a conditional promise. The only qualification of this rule is to be found in that line of cases (collated in L. E. A. 1917B, 1050) in which the happening of the event on which the promise is conditioned lies wholly or partially within the control of the promisor. Thus, where a duty of bringing about the contingency which will absolve the conditional character of the promise is left by the contract inhering in the promisor, he is under pain of performing that duty, or else his conditional promise will be transformed into an unconditional promise to pay; the rule in such cases being that if one promises to pay another a specified sum of money due the promisor from another, it is the duty of the promisor to exercise proper diligence in the collection of that money, and if he fails so to do, he can not thereafter avail himself of the condition which originally limited his undertaking. In such a case the promisee can enforce payment by alleging and proving the failure to exercise such diligence on the promisor’s part. In the instant case, while there was a duty devolving upon the defendant to use proper diligence in the collection of the note number 2 referred to, the plaintiff’s case is not planted upon any such theory, although the defendant introduced evidence to the effect that he had sued the maker of note number 2 to insolvency, and was unable to make
It will be observed that in this additional provision, relied on by defendant as setting up a condition, the obligation itself is again distinctly and unequivocally recognized, with the additional provision that interest is to be paid on the amount thus acknowledged. There are two certain and unconditional recognitions of an absolute obligation, one prior to the reference to note number 2, which, as stated, by the use of the word “also” seeks to add to, rather than detract from, such absolute acknowledgment, and the other subsequent to the reference to note number 2, in which the debt is again unequivocally acknowledged and a promise made to pay interest thereon. Even if the reference to note number 2 could, if taken by itself, be construed as implying a promise conditional in its nature, still when the instrument is construed in its entirety such provision could not properly be construed as a defeasance of the precedent and subsequent absolute obligation, but should be construed as an additional promise to do more than that, to wit: hold the proceeds of note number 2 as a pledge for the promise sued on. As was said by Judge Bleckley in Moseley v. Walker, 84 Ga. 274, 276 (10 S. E. 623) : “The absolute promise to pay $600 'on the first of November, 1878, was not qualified in any way by the subsequent provisions of the instrument. The conditional undertaking to render 2,000 pounds of cotton as rent, was no defeasance upon the antecedent undertaking to pay money, but was a stipulation to do more than pay the money—that is, to pay rent in addition to the agreed rate of interest, which was twelve per cent., or if not in addition, in lieu of the interest.” In that case the court says, “A conditional incident of failing to pay an absolute debt will not render the debt itself conditional.” Nor would the supplemental provision in the contract in the instant case, having the effect of deferring payment and obligating the maker to use the proceeds of note number 2 in satisfying his twice stated absolute obligation, have the effect of impairing such obligation. See generally 35 L. R. A. 64!).
•Counsel for the plaintiff in error, in their excellent brief, have presented with much ability their contention that the obligation
Judgment affirmed.