51 Ga. App. 523 | Ga. Ct. App. | 1935
H. H. Turner filed suit against G. E. Wilcox for
The main questions arising in this case involve the construction of the phrase “as soon as possible,” in the writing sued upon. Was the writing a conditional obligation, thereby making it necessary that the plaintiff allege and prove the happening or occurrence of the condition in order to recover ? And if conditional, was it conditional as to the debt itself or merely as to the time of payment? There seems to be a hopeless conflict in the authorities as to whether the expressions “as soon as he could,” “when able,” “as soon as possible,” “when he became able,” are or are not conditional. In First Cong. Soc. v. Miller, 15 N. EL'520, it was held that a promise to pay a promissory note barred by the statute of limitations “as soon as he could” was not a- conditional, but an absolute, promise to pay. “The words following the promise to pay are too uncer
Other decisions have made the distinction in such cases that the promise to pay is construed as absolute, and the time of payment as indefinite. In Crooker v. Holmes, 65 Me. 195 (20 Am. R. 687), it was said: “The maker of the note promises to pay when he shall sell the place he lives on'in Oxford, Maine. The debt is due in presentí. Its payment is postponed to a future time, but the debt none the less exists. The debt is absolute, the time of payment indefinite.” Possibly the weight of authority is to the effect that in such cases the promise itself is conditional and not merely the time of payment. New York cases seem to hold this principle without variance. In Scanton v. Wislord, 7 Johns. 36, it was held that a promise by one to pay a note, liability from which had been discharged in bankruptcy, “when he was able without distressing his family,” was a conditional promise, and that in a suit on such a promise it was incumbent on the plaintiff to show that the defendant was of sufficient ability to pay without distressing his family. In Tebo v. Robinson, 100 N. Y. 27 (2 N. E. 383), it was said, in holding that a promise to pay a note “when able” is conditional: “The cause of action on this promise accrued as soon as the defendant had the pecuniary ability to pay his debt. Proof that the defendant at a particular time subsequent to October 19, 1872, had property equal to or greater than the amount of the plaintiff’s debt, would not conclusively show that he was able to pay the debt within the meaning of the promise so as to give a right of
In spite of what appears to be the weight of authority, we think the better rule is that the promise is not conditional, and are disposed to follow the construction placed thereon in Norton v. Shepard, supra. It would seem to us that the expression “as soon as possible” is not necessarily limited to financial ability to pay, but may have a great many other significations and depend entirely on the manner in which it'is used and by whom it is used and to whom it is used. When we state that we will do a thing as soon as possible, “possible” is not used in an absolute sense or as having an absolute meaning, but may refer to circumstances or conditions which are entirely possible, but which at the moment may prove inconvenient of accomplishment. If we owed a friend five dollars and told him we would pay him as soon as possible, it might mean that as soon as we would go to the bank and get the money we
While, as a general rule, what amounted to a reasonable time would be a question for determination by a jury,, yet where it appears that a note of the character involved in this case was executed March 3, 1930, and suit was not filed until October 24, 1934, taken in connection with the position of the parties and the nature of the transaction, and the facts occurring since its execution, this court will hold as a matter of law that a reasonable time has elapsed. In Cook v. Crocker, 53 Ga. 66, which was a suit on a note, to which the defense was interposed that the plaintiff had agreed with the defendant that if he would pay a sum named, to be credited on the note, he, the defendant, could “have ample time to make payment of the balance,” and it appeared that fifteen months had elapsed from the time of making this promise and the bringing of the suit, the court said: “If giving possession and an indulgence of fifteen months on the balance of $600 due on the debt was not amply complying with the agreement, . . it would be hard to conceive what would be.”
It might be said that the judgment in this case can easily be affirmed on the theory that the plaintiff has shown that the defendant has been financially able, since the making of the note, to pay the same, if the phrase “as soon as possible,” is construed as a valid and enforceable condition and refers to the financial ability of the promisor, and on this theory the direction of the verdict was not improper. At the time of making the note, the defendant testified, it was for a claim the plaintiff had against him for board at the rate of $35 per month. With knowledge of the amount claimed as due for board, he signed the note. He may not now say that
Nor did the court err in overruling the demurrer to the petition for the reason above stated, and especially where the petition alleged the occurrence of the condition claimed by the defendant. It was not necessary that the defendant be proved to be able to pay at the time of institution of suit, but proof that he became able since the execution of the note would be sufficient. See Denney v. Wheelwright, 60 Miss. 733.
Judgment affirmed.