Opinion
35559.
DECIDED APRIL 18, 1955.
Suit on notes. Before Judge Calhoun. Columbus City Court. November 12, 1954.
Harry Dicus, for plaintiff in error.
J. M. Hatcher, Max R. McGlanry, Theo J. McGee, contra.
The defendant's amended answer did not set forth a defense to the notes sued on, and the trial court did not err in sustaining the general demurrer thereto.
DECIDED APRIL 18, 1955.
Harris Motor Company, Inc., brought an action in the City Court of Columbus against J. E. Horne on two notes signed by the defendant and made payable to the plaintiff. Each note stated that it was for value received. Attorney's fees and interest were prayed for on each note, and the petition alleged that notice was given the defendant that a suit would be brought if the notes were not paid. The defendant filed his answer, in which as finally amended he admitted that he signed the notes, and that notice was given him of the intention of the plaintiff to bring the action as alleged; but he denied that he is indebted to the plaintiff in any sum whatever because of facts thereinafter set forth. The defendant then, for further plea and answer, alleged that the notes were procured from him by fraudulent misrepresentation of both facts and figures, which were known to the plaintiff, but not known to the defendant, and that such facts could not have been ascertained by the defendant. The defendant then alleged the following: He was employed as sales manager for the plaintiff between August 29, 1947, and March 1, 1953, drawing a salary of $400 per month plus a commission of 8% of the net profits of the corporation. During the period in which he was employed by the plaintiff, he did not have access to the books of the corporation and did not know its financial status, and he had no way of ascertaining his earnings or the amount he was entitled to receive. On numerous occasions he requested Charles A. Harris and other officers and agents of the corporation to give him detailed information showing the earnings and profits of the corporation, but was given various excuses each time he made this request and was never given the information. The plaintiff had no regular system of paying him his commissions, and the defendant drew them from the funds of the plaintiff and such sums were to be applied against his commissions. On or about June 1, 1952, the plaintiff advised the defendant of the amount of commissions that he had drawn, and that it would be necessary to have a note or some other written memorandum for bookkeeping purposes in case he, the defendant, or Charles A. Harris, an officer of the corporation, should die before a final accounting could be reached as to the amount owed to the defendant for the fiscal year ending March 1952. Relying on the assurance made by the plaintiff's officer, he signed the note. The same reasons were given the defendant when he signed the second note, which was with reference to the fiscal year ending February 28, 1953. In another part of his answer the defendant stated that he received a salary of $400 per month plus a commission of 10% of the sales purported to have been made by the corporation. He further alleged that his plea is a plea of no consideration and that the facts set forth in his plea show that there was no consideration for the notes. The defendant then prayed that the notes sued on by the plaintiff be declared null and void, for lack of a valid consideration, fraud in the procurement, and a wilful misrepresentation of facts known to the plaintiff but unknown to the defendant.
The plaintiff filed general and special demurrers to the defendant's answer and plea. These demurrers were renewed after the defendant amended his plea and answer. After allowing the amendment, the trial judge sustained the demurrers and dismissed the plea and answer. Thereafter, on the trial of the case, the jury returned a verdict for the plaintiff, which verdict was made the judgment of the court. The defendant excepted to the antecedent ruling on the demurrers and to the final judgment as being controlled by such antecedent ruling and illegally terminating the case.
The defendant alleges in his plea and answer that he drew his salary of $400 per month and 10% of sales purported to have been made, and also in his plea and answer alleges that, in addition to his salary, he was to receive 8% of the net profits of the corporation. He further alleges that the notes were given for money he had received from the plaintiff as against any commission which might be due to him. He shows that, in addition to his salary, he had in fact received 10% of the amount of sales, whereas under his contract he was to receive only his salary and 8% of the net profits. Since it does not appear that any profits were made, in so far as the plea and answer disclose, the employer was not indebted to him in any amount whatever, but had overpaid the defendant to the extent of the sums which had been advanced to him. An antecedent debt is a valuable consideration for a note. Code § 14-302. While it is nevertheless asserted in the amended answer the plaintiff fraudulently induced the defendant to execute the notes by representing that they were "required for bookkeeping purpose only, and that it was necessary to have some written memorandum or other written evidence that said amount" had been paid to him, the plaintiff in error does not argue or insist upon the charge that the notes were fraudulently obtained from him, and it must be treated as abandoned. With the charge of fraud eliminated, the only remaining question is whether or not the defendant might by parol evidence dispute the promises of the notes, which are absolute and unconditional, and show that it was contemporaneously agreed that the notes were simply to be held by the employer pending a final accounting. This cannot be done in the absence of an allegation of fraud, accident, or mistake. Dendy v. Gamble Copeland, 59 Ga. 434; Byrd Co. v. Marietta Fertilizer Co., 127 Ga. 30 ( 56 S.E. 86); Brack v. A. P. Brantley Co., 134 Ga. 495 ( 67 S.E. 1128); Pulliam v. Merchants' Miners' State Bank, 33 Ga. App. 68 ( 125 S.E. 509); Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543 ( 162 S.E. 153). The trial court did not err in sustaining the general demurrer to the plea and answer as amended.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.