Opinion
36253.
DECIDED OCTOBER 16, 1956.
Action on note; demurrers, nonsuit. Before Judge Wright. Fulton Civil Court. March 27, 1956.
Long Jones, for plaintiff in error.
Frank R. Lea, Holland Lea, contra.
1. Code § 14-214 (which is § 14 of the U. N. I. L.) provides: "Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. A signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. . ." (emphasis by the court); and in a suit upon such an instrument brought by the payee against the maker, a nonsuit is properly granted where the evidence fails to show that the note which was signed and delivered in blank was filled up strictly in accordance with the authority given by the maker (see in this connection A. J. Cannon Co. v. Collier, 91 Ga. App. 40, 84 S.E.2d 482); and where, upon the trial of an action brought by a named payee against the maker for the face amount of a promissory note, which the maker admits he signed in blank, the note is introduced in evidence, but there is no evidence that the blanks appearing in the note were filled up in accordance with the authority given by the maker, the trial court does not err in awarding a nonsuit.
2. A judgment of a trial court ruling upon demurrers to a pleading in which time is allowed for amendment is not subject to exception or review by the appellate courts. Weinstein v. Rothberg, 87 Ga. App. 94 ( 73 S.E.2d 106); Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED OCTOBER 16, 1956.
On October 26, 1955, W. D. Ferguson, doing business as Electro-Way of Atlanta brought suit against Robert L. Stratton to recover the sum of $351.84 alleged to be due on a promissory note the material terms of which are as follows:
"Atlanta, Georgia, 1-20, 1955.
For value received, I promise to pay to the order of Electro-Way of Atlanta, At the ____ Office of the Fulton National Bank of Atlanta in the City of Atlanta, Georgia, three hundred fifty-one and 84/100 dollars in installments as outlined below, with interest from maturity at eight percent per annum until paid, with all costs of collection, including ten percent attorney's fees if collected by law or through an attorney at law.
"I hereby agree to pay said sum in installments of $9.78 each at the Luckie St. office of said bank on the 20th day of each month, beginning on the 20th day of February, 1955 for 35 consecutive months, and a final payment of $9.54 on the 20th day January, 1958.
"The undersigned, both makers and endorsers or other parties hereto, waive demand, protest, presentment, notice of demand, notice of protest, notice of presentment, notice of dishonor and notice of nonpayment.
"The bank may, at its option, call the entire loan due and payable should any payment be past due for a period of ten days or more.
"Given under the hand and seal of each party whether maker or endorser. . . /s/ Robert L. Stratton (Seal) /s/ Mrs. Mary Stratton (Seal)"
The defendant filed his answer setting forth various defenses to the action on the note to which the plaintiff demurred generally and specially. The trial court sustained certain of the demurrers, overruled others, and allowed 20 days for amendment. Upon the trial of the case, the court granted a nonsuit upon motion of the defendant, and upon appeal to this court the plaintiff assigns error upon both those judgments.