Opinion
38542.
DECIDED NOVEMBER 30, 1960.
Action on contract, etc. Bibb Civil Court. Before Judge Butler. July 22, 1960.
W. J. Patterson, Jr., for plaintiff in error.
Edward F. Taylor, H. T. O'Neal, Jr., contra.
1. A holder of a note who is not the payee may recover on it even though no transfer or indorsement appears thereon, and his right, title and interest may be proved by parol.
2. Such a holder of a promissory note and conditional-sale contract may repossess and sell the security given thereunder, applying the proceeds of sale to the note, and sue for any deficiency. All other material matters involved are controlled by the within rulings.
DECIDED NOVEMBER 30, 1960.
In this suit two conditional-sale contracts and two Ford station wagons are involved. The contracts, which contained promissory notes in the body of each, we shall refer to as the first contract and the second contract. The Ford station wagons will be referred to as the first automobile and the second automobile. On January 25, 1957, the defendant, Clint E. Brantley, purchased the first automobile from R. A. McCord Motor Company of Macon, Georgia, and as part of the purchase price executed the first contract in favor of the McCord Motor Company. The McCord Motor Company, through one of its officials, properly endorsed and assigned the first contract to the plaintiff. Several months later the first automobile was completely wrecked in the State of Texas. The loan for which the first contract was given included insurance on the first automobile and the insurer promptly replaced the first automobile with the second automobile. The defendant thereafter executed and delivered to the plaintiff the second contract apparently for the purpose of showing a change in collateral, and while the second contract and note therein were made payable to R. A. McCord Motor Company, it appears from the evidence that it was never assigned to the plaintiff. The defendant defaulted in his payments under the contracts and in December, 1958, the plaintiff, having given the defendant notice of his intention, repossessed the second automobile and proceeded to sell it at auction. After crediting the contract with the amount brought at auction and refund of unearned insurance premiums, an unpaid balance remained in the amount of $333.31 for which the plaintiff by this suit seeks to recover. It appears from the evidence and the pleadings that the plaintiff attempted to show a valid assignment of the second contract by writing in an assignment from R. A. McCord Motor Company signed by one of the company's officials. The defendant alleges that, due to the fact that the second conditional-sale contract was never at any time assigned or transferred to the plaintiff, he had no right or title in the second contract or the second automobile and, therefore, the repossession and seizure was unlawful. The defendant also alleged that the second automobile was worth $1,500 at the time of seizure for which amount he sought to recover by cross-action. He also sought the recovery of $1,000 as attorney's fees for the volume of litigation resulting from the bad faith of the plaintiffs. Initially the suit was brought on a copy of the simple promissory note contained in the first contract, and the defendant filed an answer denying the existence of such a note. Thereafter the plaintiff amended his petition and converted its suit into an action for deficiency judgment on the second contract, and at this time the defendant amended his answer and filed his cross-action. The plaintiff again amended his petition alleging substantially the facts outlined here and at that time struck the transfer and assignment which it had placed on the second contract. The case proceeded to trial, and the jury returned a verdict in favor of the defendant in the amount of $1,300 for unauthorized sale of the second automobile under power of sale in the contract and $800 for attorney's fees. The plaintiff, in addition to the general grounds, filed a motion for a new trial on 21 special grounds, to be discussed in the opinion, all of which were overruled. To this ruling the plaintiff excepts.
1. Special grounds 1 through 8 involve virtually the same question. Each ground assigns error on the court's sustaining objections to questions propounded witnesses by the plaintiff in an effort to show that the payee of the note, McCord Motor Company, had no interest and title in the second automobile or contract. To illustrate, the question was asked the defendant: "So far as you know, did McCord Motor Company ever have any interest in this second car, or the car that was purchased in Texas as described by plaintiff's Exhibit `2'?" Objection was made and sustained on the premise that the question elicited an answer which would by parol vary the terms of a solemn written contract. An official of the McCord Motor Company was also asked similar questions and the court ruled: "All questions with reference to anything which might tend to vary the terms of the written contract by parol, when objected to, I hereby sustain in a blanket way. That covers the whole line of the interrogation." We think the court erred in not permitting parol testimony to show that the plaintiff was the owner of the contract upon which it brought the action. The defendant cites the case of Allen v. Commercial Credit Co., 155 Ga. 545 ( 117 S.E. 650) wherein it is stated: "Where the petition fails to allege or show such indorsement or assignment in writing, it is subject to dismissal on general demurrer." The defendant also cites other cases with like rulings, but these cases like the Allen case have been held to have been superseded by the Negotiable Instruments Law. Section 49 of the N.I.L., (Ga. L. 1924, pp. 126, 136; Code § 14-420) provides: "Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. For the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made." The most recent application of the act to a suit involving similar facts will be found in Stone v. Colonial Credit Co., 93 Ga. App. 348 ( 91 S.E.2d 835) which held that the plaintiff who was not the payee of the note could maintain action on the note and recover the unpaid balance due even though there was no transfer or indorsement to him in writing. The court held that the petition was not subject to general demurrer. It follows that if the petition is not subject to general demurrer, the allegations, of necessity, would have to be proved by parol. In the instant case the plaintiff alleged that on January 25, 1957, the first contract was validly assigned to it; that the second contract was executed to show a change in collateral and that R. A. McCord Motor Company had no right, title or interest in the second automobile. The plaintiff must in some way have been permitted to show his ownership of the note, and unless this ownership was effected by written assignment or indorsement, it would be proper to prove it by parol. It cannot be said that the conditional-sale contract, not being separate from the note, is not negotiable to the same extent as the note itself. In reality they form but a single contract. Howard v. Trusco Finance Co., 87 Ga. App. 509, 512 ( 74 S.E.2d 379) and cases cited. Therefore, the seizure of the automobile for default in payment was lawful and the suit on the note and contract for deficiency was well founded, and the only question would be whether the power of sale was properly and fairly exercised. If the holder of the contract did not obtain a fair price the jury could credit the note with the amount they find a fair price to be.
2. Special ground 9 assigns as error the admission in evidence of the second contract over the plaintiff's objection that it was a copy and that the original was the highest and best evidence. The document was in fact a copy of the instrument pleaded by the plaintiff. It is not necessary that we cite the numerous cases upholding the admissibility of evidence against the party who originally pleads a document and later strikes it.
3. Special ground 10 of the amended motion for a new trial states that an agent of McCord Motor Company was asked on cross-examination by counsel for the defendant, whether if his signature appeared on the second note it would not be a forgery. On objection by counsel for the plaintiff the court ruled that the word "forgery" be stricken from the record. The fact that the plaintiff exercised poor judgment in placing the agent of McCord Motor Company's signature on the assignment does not affect the plaintiff's right of ownership of the contract and his right to sue for deficiency thereunder. Having done so, however, the plaintiff rendered itself vulnerable to such a question and the court protected its rights adequately in making the ruling complained of.
4. Special ground 11 complains that the verdict is excessive. In view of our rulings, special ground 11 need not be ruled on.
5. Special ground 12 of the amended motion for a new trial complains that the court failed to charge, without request, that the defendant did execute and deliver the second note to the plaintiff. The evidence was such that it was within the province of the jury to determine that fact. In view of the evidence, the court did not err in not making the charge as complained of.
6. Special ground 13 assigns as error the following charge of the court: "The note and contract in connection with this Texas Ford ranch wagon shows that it was purchased from R. A. McCord Motor Company of Macon, Georgia, on January 24, 1957, and that no transfer or assignment of the contract and note has ever heretofore been made by R. A. McCord Motor Company to the plaintiff or any other person or corporation." For the reasons stated in division 1 of the opinion covering grounds 1 through 8, the court erred in so charging the jury, for it placed before the jury an issue which by law was not an issue. See also, Young v. Cedartown Block c. Co., 89 Ga. App. 509, 511 (2a) ( 79 S.E.2d 828).
7. The following grounds assign as error various excerpts of the charge to the jury. Ground 14: "Plaintiff is not entitled to an affirmative verdict in this case against the defendant." Ground 16: "A party cannot maintain an action upon a note made payable to the order of another unless such person indorsed or otherwise transferred the note over to the party suing." Ground 17: "I charge you that plaintiff in this case is attempting to proceed with an action upon a promissory note to which it holds no legal title." Grounds 18, 19: "I charge you that under the facts of this case, the plaintiff had no right to take the automobile." For the reasons stated in division 1 of the opinion covering grounds 1 through 8 the court committed error in giving the quoted excerpts of the charge, for these excerpts are erroneous statements of the law.
8. Special ground 15 assigns as error the charge of the court concerning legal and constructive fraud. The court committed error in charging the jury concerning fraud, for no harm was done the defendant nor was the defendant deceived or injured in any way as the result of the plaintiff's having attempted to write in an assignment by McCord Motor Company. Code § 37-702.
9. Special grounds 20 and 21 assign as error the court's charge in regard to attorney's fees. The court committed no error in making the charge complained of for the reasons assigned in these grounds.
The court erred in sustaining the objections to the questions propounded as outlined in special grounds 1 through 8, and in making the charges complained of in special grounds 13, 14, 15, 16, 17, 18 and 19. It was therefore error to overrule the motion for a new trial.
Judgment reversed. Nichols and Bell, JJ., concur.