Opinion
43963.
ARGUED OCTOBER 9, 1968.
DECIDED NOVEMBER 12, 1968.
Action on note. Muscogee Municipal Court. Before Judge Bagley.
Marilyn W. Carney, for appellant.
Nelson C. Coffin, H. Norwood Pearce, for appellees.
1. Where a note is signed for an organization by one in a representative capacity, the capacity in which he signs should appear. Where, as here, the signatory on a note was a Masonic organization by a named person, no question was raised by the defensive pleadings as to the authority of the person to sign for the organization, the proof showed that the person signing was the chief officer of the organization, and that his authority was not contested, the obligation is that of the organization.
2. The pleaded defense of accord and satisfaction was not sustained by the evidence.
3. The court did not err in finding in favor of the third party defendant to whom the automobile which constituted security for the note was delivered, since it appears that such defendant was acting at the time as a de facto officer of the defendant organization.
ARGUED OCTOBER 9, 1968 — DECIDED NOVEMBER 12, 1968.
Cliff M. Averett, Inc., filed suit against Modern Free and Accepted Masons of the World for the balance due on a note and bill of sale to secure debt for an automobile, the attached instrument being signed "Modern Free and Accepted Masons of the World, J. B. Baldwin" and dated October, 1965. The suit was answered by "Supreme Grand Lodge, Modern Free and Accepted Masons of the World, Ancient and Accepted Scottish Rite Free Masons," and no contention is made that this entity (designated in the complaint as a "company") may not be made the subject of suit. The defendant denied the indebtedness and moved that J. M. McMath be made a party defendant. The allegations of the motion, which were testified to in substance by a witness, were that the automobile was returned to plaintiff in 1965, that "plaintiff was satisfied on the account and note [and] accepted the return of the automobile as being satisfactory," that McMath, who was not "a true and rightful officer of defendant" represented himself to be such and in that capacity took possession of the automobile for his personal use. The car was wrecked while in McMath's possession. The debt was unpaid. J. B. Baldwin was Supreme Grand Master of the defendant lodge for 40 years until July, 1967, and there was no dispute as to his authority before that date. McMath's authority was not disputed until after October, 1966, at which time it appears that his faction attempted to take over control of the organization, took physical possession of the lodge offices "and had declared themselves to be officers of the organization without appropriate authority." Plaintiff, although informed by the defendant's witness about "the problem relative to the automobile" turned it over to McMath on one occasion, the date of which is unspecified, but which was apparently after October, 1966. The lodge made instalment payments on the automobile through July, 1966, and two additional credits were posted in January and February, 1967.
The judge hearing the case without a jury rendered judgment in favor of McMath and against the defendant.
1. The name of an organization followed by the name and office of an authorized individual as the signatory of a note constitutes a signature made in a representative capacity. Code Ann. § 109A-3-403 (3). Such a signature is presumed to be authorized, and if it is desired to challenge its effectiveness it must be specifically denied in the pleadings. Code Ann. § 109A-3-307. No issue as to the authority of Baldwin to sign the note was made on the trial of this case, and it accordingly constituted an obligation of the defendant. While there is some testimony as to a renewal note, no such note appears in the record. Nor would a mere renewal change the obligation. King v. Edel, 69 Ga. App. 607, 612 ( 26 S.E.2d 365).
2. There is no testimony that the plaintiff turned over the automobile which constituted the collateral for the note to McMath other than in McMath's capacity as an officer of the defendant. Since the same witness who undertook to testify to the allegations of the motion to make a third party defendant further testified that no question of the authority of McMath arose until after October, 1966, and it was after that time that the plaintiff received the car and turned the car over to McMath, there was no proof of an accord and satisfaction in 1965 as alleged. At best, the witness testified to two contradictory and mutually exclusive states of fact.
3. Since the trial court was authorized to find that there was no accord and satisfaction of the note and since it does not appear that the note sued on was in fact paid by a renewal note, the conclusion is inevitable that the defendant owed the balance, less any amount in which the collateral (the automobile) might have depreciated as a result of the plaintiff releasing it to an unauthorized person who caused it damage. Since McMath was at least a de facto officer of the defendant at the time this occurred (it appears that two groups were contending for control of the lodge) it is not at all certain that the plaintiff was wrong in releasing the car to him in his capacity as such officer. If, however, this was a wrongful act against the defendant it would not constitute a complete defense to the indebtedness on the note, but it would be incumbent on the defendant to show the amount of damage attributable to this act. This it utterly failed to do. Nor did the testimony establish that McMath was in no way related to or connected with the defendant's organization as alleged, since it appears that he was in physical possession of the offices and was acting as an officer of the organization at the time.
The evidence establishes that the note was the obligation of the defendant. It fails to establish the defenses of payment, accord and satisfaction, or novation.
Judgment affirmed. Jordan, P. J., and Pannell, J., concur.