Opinion
36118.
DECIDED APRIL 11, 1956.
Action on note. Before Judge Parker. Fulton Civil Court. January 12, 1956.
MacDougald, Feagin Williams, for plaintiff in error.
John I. Hynds, Lee C. Bobet, contra.
While, under the law, an account can not be split and separate suits be brought on the parts into which it is divided, there may exist between the same parties more than one account arising out of different transactions.
DECIDED APRIL 11, 1956.
C. A. Bartlett brought suit on a note against B. J. Jones in the City Court of Fulton County. The plaintiff's petition alleged in substance that the defendant was indebted to the plaintiff in the sum of $1,182.50 principal and $19.50 interest, upon a promissory note executed by defendant to plaintiff; that the note provided for monthly instalments commencing on the 1st day of February, 1955; that it further provided that, should any of such payments be in default for a period of more than ten days, the entire amount would become due; that the defendant was in default as to the payments for February, March, and April, 1955, and plaintiff had demanded the entire amount due; that defendant refused to pay the past-due instalments; and that plaintiff was owner and holder of the note. The note was attached to and made part of the petition.
The answer alleged that the note was illegal, void, and without consideration; that plaintiff had already sued the note to judgment in case No. 289357 of the Civil Court of Fulton County, obtaining a judgment at the February term, 1953, thereof in the sum of $78.09 besides interest; that plaintiff had collected the judgment through garnishment proceedings, which rendered the matter res adjudicata as to all indebtedness of defendant to plaintiff; that subsequently to the satisfaction of the judgment, the defendant did not become indebted to plaintiff in any amount and owed no monies for any reason to plaintiff; that plaintiff had "hounded and pestered" defendant to induce him to sign said note; and that defendant did sign the note, but received no consideration therefor and his execution thereof was purely gratuitous.
On the trial the plaintiff testified in substance: During 1951 and 1952 plaintiff owned and operated an automobile service station, selling gasoline, oil, tires, etc., and the defendant was one of his customers purchasing merchandise on an open account. In March of 1952 the defendant was indebted to plaintiff approximately in the sum of $1,085, and the account being in arrears, plaintiff refused to extend further credit to defendant, and the account was terminated. On June 17, 1952, defendant filed a voluntary petition in bankruptcy and was thereupon adjudicated a bankrupt in the United States District Court for the Northern District of Georgia, Atlanta Division, and had included in his schedule of "Creditors whose claims are unsecured" the following entry: "Mr. Clyde A. Bartlett, Blue Bird Truck Stop, 200 Memorial Drive, S.W., Atlanta, Georgia, for gas, oil and tires purchased in 1951, $1,085.00 Int." The open account having been terminated in March, 1952, and the petition in bankruptcy having been filed in June, 1952, by defendant, the parties hereto thereafter treated the debt as barred from suit, as it was anticipated that it would be discharged in bankruptcy. In the latter part of July, 1952, the parties, considering the former account as a debt that would ultimately be discharged in bankruptcy, entered into a new agreement whereby the defendant was to do some work for plaintiff, and they agreed to the opening of a new charge account which allowed defendant to purchase merchandise on credit. Under this agreement the first charge was made on July 27, 1952. No part of the first account was brought forward, and it was not connected with the second account in any manner. The second account continued to run until September 11, 1952, at which time the purchases amounted to $204.21. The defendant defaulted in the payment of the second account, and as a consequence plaintiff instituted an action on the account, and as a consequence plaintiff instituted an action on the account above stated with the resulting judgment for $78.09 besides $1.48 interest, the said bankruptcy proceedings being still pending. Plaintiff filed objections to said bankruptcy proceedings, and on October 24, 1954, the United States District Court denied defendant's petition for a discharge in bankruptcy. Thereafter the parties hereto entered into a discussion of the said debt scheduled in the bankrupt petition, and agreed to settle the same by defendant paying plaintiff $1,200. Defendant thereupon executed, on December 28, 1954, a promissory note for $1,200 payable to plaintiff, which is the note sued on in this action. The consideration for said note was the merchandise purchased on open account by defendant from plaintiff prior to said bankruptcy proceedings. The note provided for the payment of monthly instalments of $50, commencing February 1, 1955. Defendant made two payments on said note, one for $12.50 on January 7, 1955, and another for $5 on March 18, 1955, reducing the principal sum of said note to $1,182.50, the amount sued on in this action.
The defendant's testimony was in direct conflict with that of plaintiff, and he denied that he was in debt to plaintiff in any amount.
By agreement the case was tried before the judge without a jury. After hearing both oral and documentary evidence, a judgment was rendered in favor of the plaintiff in the principal sum sued for with accrued interest. The defendant moved for a new trial, but the motion was denied, and the exception is to that judgment.
The defendant insists that the note was without consideration because the alleged indebtedness had been satisfied by a prior judgment which was res adjudicata of the present action. The plaintiff testified that the present action was instituted for a note the consideration of which was a separate account from that for which a previous judgment was rendered against the defendant. Two accounts may exist between the same parties so as to give two separate and distinct causes of action. Gowder v. Reeves, 61 Ga. App. 715 ( 7 S.E.2d 337). There was sufficient evidence to support the verdict, and the trial judge did not err in denying the motion for a new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.