Opinion
36675.
DECIDED APRIL 17, 1957.
Action on check; conditional delivery, etc. Before Judge Cooper. Augusta Municipal Court. February 12, 1957.
Cornelius B. Thurmond, Jr., Sanders, Thurmond Hester, for plaintiff in error.
Isaac S. Peebles, Jr., contra.
1. As between the original parties, and as regards a remote party other than a holder in due course, the delivery of a negotiable instrument may be conditional, and evidence is admissible to show that the instrument was not to take effect until some condition was performed.
2. This court will not pass on assignments of error requiring a consideration of the evidence where such evidence is not in a proper form for consideration.
DECIDED APRIL 17, 1957.
Maurice E. Baber filed an action against Thomas Fulmer in the Municipal Court of Augusta on a check. The petition alleged in part: that on April 4, 1956, the defendant gave to petitioner a check payable to petitioner with the defendant as maker for $841.67 drawn on the Citizens Southern National Bank for all of petitioner's interest in the partnership business theretofore conducted by them; that the check was duly presented to the bank for payment and the bank turned down the check on account of insufficient funds; that on May 1, 1956, the check was again presented and protested; a copy of the check was thereto attached, marked exhibit A and by reference made a part of the petition; that the defendant was justly indebted to the petitioner in the sum of $841.67, the amount of the check, plus protest fee of $1.50, with interest from April 4, 1956, at the rate of 7% per annum; that petitioner made repeated demands on the defendant to pay the amount of the check, and he wholly failed and refused to pay same or any part thereof.
The first answer filed by the defendant alleged in part: that on or about April 4, 1956, the defendant and the plaintiff severed their partnership business, and in connection with the severance thereof, the defendant gave the plaintiff a certain check as above alleged in the petition, and in turn, the plaintiff gave the defendant certain checks; that the plaintiff and the defendant had been partners in the operation of a used car business for some months prior to April 4, 1956, and at the time the plaintiff and the defendant dissolved the partnership, the bookkeeping records, books, receipts and other evidence of partnership business were in a confused state; that because of said confusion they agreed that said books should be audited wherein allowances were to be computed as to the proportionate contribution of capital into the partnership; proportionate sales made by the partners and proportionate withdrawals from the partnership were to be computed, and upon arriving at the amount of equity which the plaintiff had in the partnership, this figure would be the sales price for the plaintiff's interest in the partnership, and the defendant would pay the plaintiff this amount of money; that in accordance with the agreement between them to hold their respective checks until such time as the exact amount of purchase was arrived at, the defendant has held checks and is still holding checks given him by the plaintiff, and, under the agreement, the check described in paragraph two of the petition was not supposed to have been presented to the bank until such time as the books were audited and the exact figure of purchase was known.
The answer further alleged that the plaintiff had misrepresented to the defendant several facts as to the condition of the business and the plaintiff's equity therein. The plaintiff made a motion to strike the answer. This motion was sustained.
The defendant then filed a second answer which was substantially the same as the original answer, except it was more detailed as to the results of an audit of the books. This answer was also stricken by the judge and the case was adjudged in default. The defendant then filed a demand for a jury trial.
On the trial of the case both parties made a motion for a directed verdict. The plaintiff's motion was sustained, and the defendant made a motion for a judgment notwithstanding the verdict which was denied.
The defendant now excepts to the following rulings of the trial judge: the striking of the original answer as amended; allowing an exhibit to be introduced in evidence over the defendant's objection; denying the defendant's motion for a directed verdict; failing to allow the defendant to introduce evidence in rebuttal; denying the defendant's motion for a judgment notwithstanding the verdict.
1. We will first consider whether the trial judge erred in striking the defendant's answers. The answers alleged that the parties agreed to hold the checks and not present them to the bank until the books had been audited and the exact figure of the purchase had been ascertained. Delivery of an instrument may be conditional. "`As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.' Ga. L. 1924, p. 130, sec. 16 (Code of 1933, § 14-216). So, evidence of a contemporaneous oral agreement is admissible as against parties not holders in due course, to show that the instrument was not to take effect until some condition was performed." Murphy v. Drum Bugle Corps, 53 Ga. App. 448 ( 186 S.E. 444).
If there was some condition which was to be performed before the instrument was to take effect, the delivery was not complete. In the present case it was a valid defense, against the payee of the check, that the parties agreed that the check was not to be cashed until the audit was completed, and if the audit disclosed a different sum was due, then another amount would be substituted for the present one. The answers having set up sufficient facts to constitute a conditional delivery of the instrument, the trial judge erred in striking the answers. Empire Mortgage c. Corp. v. Donaldson, 64 Ga. App. 197 ( 12 S.E.2d 489); South Georgia Trust Co. v. Crandall, 47 Ga. App. 328 (4, 5) ( 170 S.E. 333); Murphy v. Drum Bugle Corps, supra.
2. The stenographic report of the trial specified in the bill of exceptions and included in the record contains arguments and rulings of the court thereon, objections of counsel to the admissions of evidence, statements of the court and other colloquy which constitutes more than fifty percent of the purported brief of evidence. This does not show a bona fide attempt to comply with the requirement of the Code (Ann Supp.) §§ 6-802, 70-305 and 70-312, that immaterial parts of the record of the trial be stricken, in order to use such report in lieu of a brief of evidence. This court will not pass on assignments of error requiring a consideration of the evidence where such evidence is not in a proper form for consideration. Satterwhite v. Mansfield, 91 Ga. App. 450 ( 85 S.E.2d 802).
The remaining assignments of error requiring such examination are not passed upon by this court.
Judgment reversed. Felton, C. J., and Nichols, J., concur.