Opinion
32456.
DECIDED MAY 18, 1949.
Complaint; from Sylvester City Court — Judge Monk. January 2, 1949.
Williamson Crowe, for plaintiff in error.
Ford Houston, contra.
1. There is no merit in the general grounds.
2. The special grounds require no reversal, for the reasons expressed in the corresponding division of the opinion.
3. Where a surety on a note pays a part thereof, the surety so paying may sue the principal upon the implied promise of the principal to reimburse him.
DECIDED MAY 18, 1949.
C. C. Powell brought suit against J. H. Gay Sr. upon an account. There is attached to the petition a bill of particulars showing an item of $91 for cash money borrowed; another item of $150 for cash money borrowed; and another item of $312.50, designated as "to amount paid H. P. Plair by C. C. Powell as surety for J. H. Gay Sr." The jury returned a verdict in favor of the plaintiff for the third item of $312.50. The defendant filed a demurrer to the third item omitting the formal parts, as follows: "And now comes the defendant in the above stated case and, before pleading to the merits of said cause, files this his demurrer and motion to strike and for ground thereof says: This defendant demurs to the third item on the bill of particulars attached to the petition and moves to strike the same to wit: `To amount paid H. P. Plair by C. C. Powell as surety for J. H. Gay Sr. . . $312.50,' for the reason and upon the ground that it appears from the face of the petition and the bill of particulars that said item refers to and constitutes a payment by the plaintiff to another to discharge a debt, default or miscarriage of the defendant, and the same is required by law to be in writing or authority for the payment thereof must be in writing in order to charge this defendant therewith, and the same shows on its face that it is not a legal charge against this defendant, and for the further reason that if the indebtedness is evidenced by writing or the authority to pay said debt was in writing, then this item should be based upon such writing and not in a suit upon account." The court overruled the demurrer, and exceptions pendente lite were duly filed. The defendant, subject to the demurrer, filed an answer. We are not concerned with the answer with reference to the first two items. As to the third item, the defendant denied indebtedness to the plaintiff and required strict proof of the legality of this charge.
The evidence with reference to the third item is substantially as follows: The plaintiff stated that at the instance of the defendant he and Broughton Williams as sureties signed a note for the defendant for $600, payable to H. P. Plair; that at the time he signed as surety he placed with H. P. Plair, the payee, a collateral note for $300. This $300 note was payable to J. H. Powell, signed by one C. B. O' Kelley. The $300 collateral note was secured by a security deed of C. B. O'Kelley to J. H. Powell, the son of the plaintiff, which son owed the plaintiff. The $300 was paid, and the plaintiff paid the same together with $12 or $12.50. The overage above the $300 the witness presumed was interest. H. P. Plair gave credit for the $312.50 on the note of $600 on which the plaintiff was surety.
J. H. Powell testified substantially that he owed his father about $400 for the purchase of land; that he received the note from C. B. O'Kelley, which was paid to the witness; that he paid his father with that note; and that he owed his father $100 besides the O'Kelley note. The witness's recollection was that O'Kelley paid him the $300 and that he paid another $100 to his father to make up the $400.
O'Kelley testified substantially that he executed the note for $300, which was due February 15, 1945, and that on February 13, 1945, he paid the $300 to H. P. Plair (the payee in the $600 note). When the $300 was paid by O'Kelley to Plair, Plair returned the $300 note together with the recorded deed to O'Kelley.
H. P. Plair testified substantially that the O'Kelley note was paid to him and was credited on the note of Gay in the principal sum of $600. The O'Kelley note was put up with the witness as collateral. The note was in the hands of the witness, and the witness had orders from "Mr. Powell," when it was paid, to give O'Kelley his note. Mr. Gay was not there when O'Kelley paid the note. Mr. Williams, the other surety, paid the balance of the $600, and the witness turned the note over to Williams. The witness wrote Mr. Gay about the $600 note, then Williams came in and paid the balance to the witness. The witness then turned the $600 note, which the plaintiff and Williams had signed as sureties, over to the defendant Gay. The witness credited the $300 paid by O'Kelley on the back of Gay's note for $600. The witness received some payments from Gay on the $600 note. There was introduced the O'Kelley note marked "Paid February 13, 1945. . . J. H. Plair."
The defendant, J. H. Gay Sr., testified that he did not know anything about the item of $312.50 except what he heard. The witness stated that he met Williams in Moultrie at the time Williams informed the defendant that he had taken up the note that he, Williams, and C. C. Powell signed, and would like for Gay to pay it. At that time the defendant paid to Williams $125 and later paid $55. The defendant had been making payments all along on the $600 note before Williams got it. When he paid Williams this amount of $180, the note was turned over to the witness. There were no credits on it; it was not even transferred to Williams. It was not recorded and the witness destroyed it. He proffered the checks of $125 and $55. The witness never heard of the plaintiff having paid on the defendant's note until long afterwards. On cross-examination, this witness testified: That he had two checks he paid Williams; that he had some letters from Plair. "I thought I was keeping up the interest. I destroyed the note because I wanted it out of the way. These canceled checks show that I paid Mr. Broughton William $125 and $55. That's all I paid to him. I didn't pay Mr. C. C. Powell anything on the note because I don't figure I owed him anything. The note was paid. I didn't say that I didn't figure I owed him anything because he was my brother-in-law. I paid Mr. Williams $125 and $55. That was what I figured was the balance of the note. I did not know that Mr. Powell had paid any $312.50 on that note. I had paid Mr. Plair all along, and when Mr. Williams told me he had the note and the amount due on it, I figured that the amount he claimed was approximately correct. There were no credits on the note at all, and it seemed that Mr. Plair did not keep any books on it. Mr. Williams met me and told me he had the note and wanted his money and I paid him and got the note." The defendant offered in evidence the $125 check and the $55 check which he paid to Williams.
H. P. Plair, the payee in the $600 note, recalled, testified that he credited the O'Kelley $300 note on the $600 note which the plaintiff, together with Williams, had signed as sureties for the defendant, and that he credited $12.50 as interest.
The defendant filed his motion for a new trial on the general grounds and thereafter added certain special grounds.
1. We have set out the evidence with reference to the third item in the bill of particulars somewhat in detail. The evidence in some minor particulars is conflicting, but it is sufficient to sustain the verdict.
2. (a) Error is assigned in special ground one on the testimony of the plaintiff to the effect that the defendant told Powell that, if he would go on the note of $600 as surety for the money borrowed from plair, Williams would sign it as surety also; and error is assigned on the explanation of a witness with reference to the $300 note signed by O'Kelley to Plair for $300; and how the said note was paid, and with reference to the paying of $12.50 additional. This testimony was admitted over the objection of counsel for the defendant on the grounds, (1) that is was irrelevant and immaterial because any transaction Powell had with Plair could not bind the defendant, and (2) that there was no evidence that the defendant ever had any connection with the transaction between Powell and Plair or any knowledge of any transaction; that the O'Kelley note was not transferred to any person, not payable to Plair; that it was not shown that Plair had any right to the proceeds thereof, and that such transaction between Powell and Plair could not bind the defendant; that the transaction as related to the plaintiff regarding the O'Kelley note could not bind the defendant because there is no evidence that Gay invited payment by Powell or requested it, and that Powell was under no obligation to pay Gay's debts until a default by Gay.
Under the facts of this case, the overruling of the objection to this testimony was not error for any of the reasons assigned.
(b) In the second special ground, error is assigned on the testimony of the witness, H. P. Plair, as set out above regarding the $600 note and how it was paid. The defendant assigns error because he moved to strike from the record the testimony of Plair with reference to the notes referred to by the said witness as having been turned over to him to secure that much of the note which Gay as maker and Powell and Williams, as sureties, signed as payable to the witness Plair, for the reason that the same is not authorized by the petition and the pleadings in the case, the plaintiff not suing upon any note as surety, but the suit being upon open account; and in order to render the testimony of the witness Plair competent, the suit should be brought upon a writing and not in a suit upon account, if the plaintiff is suing as surety; and upon the further ground that the defendant had nothing to do with the payment alleged to have been made by the plaintiff or any knowledge of such payment, and if such payment was made, it was a voluntary payment; and that the evidence which was admitted over objection was immaterial and prejudicial. There is no merit in this contention.
(c) In special ground three, error is assigned because of the admission over the defendant's objection of the O'Kelley note, dated December 12, 1944, and due February 15, 1945, for $300 payable to J. H. Powell, signed by O'Kelley, and marked paid February 13, 1945, bearing a notation in the corner of the note, "for balance of the purchase-price of land." Objection was made to this testimony because it was irrelevant and immaterial; had no bearing on the case or the issues; because there was no pleading authorizing the introduction of such testimony, or that the defendant Gay had any connection with the transaction whatsoever, and thus the evidence was wholly disconnected from the issues in the case, had no bearing on the case, and that the defendant Gay was not connected with this evidence in any way. Under the whole record, we think that this ground is without merit.
(d) In special ground four, error is assigned on the following excerpt from the charge of the court: "I give you in charge, gentlemen, further in this connection and with respect to the other item of $312.50, which the plaintiff alleges and contends that he paid to H. P. Plair — that the same was paid to said H. P. Plair by the plaintiff by reason of his having stood a security debt with the defendant, J. H. Gay Sr., in the case, and that he paid the certain item of $312.50, which was one-half of the amount of the secured debt, which he had to pay by reason of having signed such security for the defendant; in this connection, gentlemen, I give you in charge that, as a general rule of law, payment by a surety or endorser of a debt past due would entitle such surety to proceed immediately against his principal for the sum paid with interest thereon and all legal costs to which he may have been subjected by the default of his principal. There is another general rule of law with reference to the payment of an amount for another — this is if you should believe, gentlemen, as contended by the plaintiff in the case, that he paid the sum, as contended by him, if you believe by a preponderance of the testimony that it was money paid by the plaintiff for the benefit of the defendant in the case and that such benefit accrued to this defendant, I give you in charge that an action may be had and maintained for money had and received. Such action lies in all cases where another has received money which the plaintiff in equity and good conscience is entitled to recover and which the defendant is not entitled in good conscience to retain."
It is claimed that this excerpt is erroneous because it is argumentative and that the plaintiff was forced to pay $312.50, which was one-half of the security debt, for that it did not appear in the evidence that $312.50 was one-half of the security debt, and for the reason that the evidence discloses that the defendant had made numerous payments upon the said debt, and because there is nothing in the pleadings or the evidence that the plaintiff was ever requested or required to pay the said sum of $312.50, and the said charge was inapplicable because the suit was on an account and not on the written instrument; and that the said excerpt was inapt and foreign to the pleadings, confusing to the jury, and led the jury to pass upon issues not involved in the pleadings. If the plaintiff had paid for the benefit of the defendant $312.50 under circumstances which did not require or authorize the plaintiff to do so, that was in the nature of a defense. It would seem throughout the whole record that the $300 O'Kelley note was one-half of the original security debt, and that $12.50 was the interest which the plaintiff was supposed to pay in addition to the $300. The defendant stated that he did not know how much he paid, that he thought he had paid the interest, and that he had no knowledge of any payment made by Powell as surety upon the note. Moreover the defendant himself destroyed the surety note. There was positive evidence, not only from the plaintiff but from others, that the $300 O'Kelley note went to pay the debt of the defendant. This was positive testimony. The defendant nowhere ever testified positively as to what amounts he paid on his own $600 note to Plair except the two checks which he paid to the other surety Williams. It might have occurred to the jury that, since he had so carefully retained the two checks which he paid to the surety Williams when he obtained his $600, he would have retained some evidence of any other payments he made on the note or that he would have retained the $600 note which he himself destroyed, because as he stated, he wanted to get it out of the way. If he had shown this, then the jury could have determined that there were no credits on the note of $312.50 paid by the plaintiff. When we view the charge as a whole, as applied to the full record in this case, there is no merit in this contention.
(e) Special ground five assigns error on the following charge of the court: "If you should believe, gentlemen, that the defendant received this money, as alleged, and in good conscience the plaintiff should have the money and the defendant is not entitled in good conscience to retain the money, and if you should believe it by a preponderance of the testimony, then your verdict would be in favor of the plaintiff for the amount so received by the defendant and paid by the plaintiff. That is with regard to the third item on the account, gentlemen." It is contended that this excerpt was error because it instructed the jury that the plaintiff was entitled to recover against the defendant for a payment made by a creditor of the plaintiff to the defendant, whether or not he was under any obligation to pay it and irrespective of whether there was any request obligation, or requirement of the plaintiff to make such payment. Under the pleadings and the evidence, this exception is without merit.
3. We have not discussed the assignments or error based upon the exceptions pendente lite to the overruling of the defendant's demurrer to the petition. In substance, practically all of the assignments of error on both the general grounds and the special grounds are made with the view that the court erroneously overruled the demurrer to the petition. We have set out the petition, which was a suit on an account, and have copied the defendant's demurrer verbatim. Counsel for the defendant throughout the case places his burden of contention that the judgment should be reversed on the decision of Blue v. Fora. 12 Ga. 45. In that case the Supreme Court said in effect that, where a complaint is founded on an account and the evidence shows in the trial that there was a written contract between the parties touching the subject-matter of the account, the plaintiff could not proceed and was entitled to a nonsuit. The facts in that case and the principle of law applied are in no wise analogous to the question presented in the instant case, and therefore the several decisions relied on by counsel for the defendant following that decision are likewise not applicable in the instant case. It must be kept in mind that in the instant case there was no written contract between the parties as contemplated in the Blue case, supra. To our minds this court clearly settled the issue in the instant case in Lamis v. Callianos, 57 Ga. App. 238 ( 194 S.E. 923). The court said: "Where two sureties discharge a promissory note upon default of their principal, each paying one-half of the face amount of the note, they may bring a joint action on the note against such principal, or each of them may sue the principal separately, not on the note, but upon the implied promise of the principal to reimburse them." (Italics ours.) In the case just cited, the court further said, "A conclusive answer to the question is furnished by the fact that the plaintiff is not the sole owner of the notes. . . According to the facts alleged in the declaration, the plaintiff alone did not pay off the notes but they were paid off by him in part and by the 3 others in part, the defendant paying nothing." This decision seems to be a complete adverse answer, with perhaps the exception of a few minor details, to the defendant's contentions throughout the record. There are two other decisions to which we will call attention on the issue before us. In Wright v. Pearson, 48 Ga. App. 207, 209, 210 ( 172 S.E. 590), this court held that, in an action on an account with bill of particulars annexed as appears in the instant case, the plaintiff could recover either upon an express contract or on an implied contract, saying: "The plaintiff may prove either, or both, and then the jury may find such a verdict as they may think proper under the evidence." In the Wright case was cited Johnson v. Quin, 52 Ga. 485. That decision held that in an action on an account the plaintiff could recover either upon a special agreement to pay the amount charged or upon the implied contract in the nature of a quantum meruit. Under the liberal pleadings act with reference to an account, it is not necessary to set forth the action in two counts, one count containing the special agreement and the other the implied agreement in general assumption. But under the act of the General Assembly with reference to a suit on an account the plaintiff may prove his case as fully as he would be able to do if the petition contained two counts, one count on the express contract and the other on the implied contract. When we view the exceptions pendente lite and the objections to the evidence and the assignments of error on the charge of the court, we conclude that the assignments of error throughout are without merit for the following reasons: (a) The demurrers and objections to the form of the pleadings are settled by Lamis v. Callianos, supra. (b) The objections to the oral evidence as to the contract of suretyship, the note signed by Powell as surety, involving questions in the nature of defense, are without merit for one reason or another because the defendant himself destroyed the note. (c) When we view the charge of the court as a whole in the light of the pleadings and the evidence, assignments of error on the excerpts from the charge of the court are without merit.
Therefore, as a whole the court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.