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Lawskills.com Georgia Caselaw
McLENDON v. BOWMAN, INC.
35230.
Attachment. Before Judge Perryman. Wilkes Superior Court. April 3, 1954.
GARDNER, P. J.
The court did not err in denying the motion for a new trial as set forth in the body of the opinion.
This is an attachment case brought by Bowman, Inc., whom we shall call the seller, against T. A. McLendon, whom we shall call the purchaser. The seller was engaged in the business of selling household electrical equipment. In the course of the business of the seller, the seller would procure the household equipment from the General Electric Credit Corporation, whom we shall call the Electric Corporation. The seller made a sale to the purchaser of certain household electrical equipment. It took from the purchaser two notes based upon a purchase-money agreement. The seller transferred the notes to the Electric Corporation. The purchaser was to liquidate the debt by paying monthly instalments. The purchaser did not pay the instalments. So far as the record reveals he paid approximately $14. Under this situation the seller paid the Electric Corporation and the Electric Corporation transferred the notes to the seller, whereupon the seller procured an attachment against the purchaser and had the attachment levied on the household equipment which was in the possession of the purchaser. The seller duly filed his declaration in attachment, whereupon the purchaser filed his counter-affidavit denying the indebtedness in attachment as follows: "1. Defendant denies each and every part of paragraphs 1, 2, 3, & 4 of the declaration filed by the plaintiff.
"2. For further plea and answer the defendant says that the notes sued on and attached copies are not the complete contract but there was in addition a transfer by Bowman, Inc., of both notes to General Electric Credit Corporation, with all titles to the property described in the said notes. Defendant further says on information and belief that these notes had not been reconveyed to the plaintiff at the time of the suing out of the attachment in this case. And that title to the notes and the property therein described was in General Electric Credit Corporation and not in plaintiff.
"3. For further plea and answer the defendant says that after the execution of the notes herein sued on or declared on that Bowman, Inc., had conveyed and the notes and their titles to same to General Electric Credit Corporation and that the purported transfer or reassignment by General Electric Credit Corporation to Bowman, Inc., is merely a transfer of the note without any transfer of title to the property therein described and that the title to the property levied on was still in the General Electric Credit Corporation at the time of the suing out of this attachment. Defendant says that by reason of these facts the attachment was and is void and of no force and effect.
"4. For further plea and answer the defendant shows that at the time of the signing of these notes that they were all blank and that he had a trade or contract with the plaintiff to buy all this merchandise for $585 and that he paid $100 in cash. That he had an agreement with the plaintiff to pay the balance of $485 plus interest and insurance in 18 equal monthly instalments. That the notes were signed in blank because the plaintiff did not then have a description of the property and had not calculated the interest and insurance as to be able to know the exact amount of the instalments. That the defendant relied on the plaintiff to carry out the contract as made between him and the plaintiff. Wherefore defendant prays that these his grounds of defense be inquired of by the court, and that the plaintiff's attachment and declaration thereon be dismissed.
"And that if the court should find that the proceedings are proper proceedings then he asks that the contract or notes be reformed to comply with the agreement he had with the plaintiff and that judgment be so molded as to allow him to pay such instalments as would have matured if the notes had been filled out as agreed on by the parties and provided then for his paying the future instalments as they would have matured."
This plea and answer was thereafter amended as to paragraph 2 as follows: "The reassignment of both the notes alleged to have been made by General Electric Credit Corporation to Bowman, Inc., had not been made when this attachment was sued out and that the title to the note and property was in the General Electric Credit Corporation and that the plaintiff had no legal or other title to the same or right to sue thereon."
The last amendment quoted above is treated by the parties as a plea of non est factum. Upon the allowance of the plea of non est factum the seller pleaded surprise and the case was continued from the November term, 1953, until the February term, 1954, at which term the parties introduced evidence and the case was submitted to a jury. The verdict was in favor of the seller and against the purchaser in the amount of $691 principal and $42 interest. The purchaser filed his motion for a new trial on the statutory grounds and thereafter added one special ground. The trial court denied the motion for a new trial, and error is assigned on this judgment.
1. (a) The contentions of the purchaser are that the principal issue is whether or not the court erred in admitting the notes in evidence without proof of their execution; that the answer and the amendments thereto of the purchaser when boiled down, charged that the notes did not belong to the seller when the attachment was sued out; that attached to the declaration were purported transfers dated before the attachment; that whether or not the plea he filed is a plea of non est factum to the transfers of the notes or a plea of forgery of the transfers is immaterial, since they do not affect the result. It is further contended by the purchaser that it is possible under the pleadings for the issue to cover a case of the transfers not being made by the Electric Corporation at all or the transfers being made and dated back. The purchaser contends that the evidence submitted is insufficient as a matter of law to show that the purchaser carried the burden of proof on these issues sufficient to sustain the verdict. These contentions are not supported by the evidence or by the law.
There is sufficient evidence to sustain the verdict of the jury to the effect that the seller had repurchased the notes from the Electric Corporation prior to March 30, 1953, the date of the attachment being sued out.
(b) Under the facts of this case the seller was entitled to recover if it could prove it was a transferee in due course, or was entitled to recover if it could show that it was an original payee of a promissory note in its possession even though an uncanceled assignment to a third party remained outstanding. In Bomar v. Equitable Mortgage Co., 111 Ga. 143 (36 S. E. 601), the Supreme Court said: "The payee of a promissory note, in possession of the same, is presumed to own it, although his endorsement thereon, in full or in blank, may stand uncanceled. He may sue upon such note, and his title to the same can not be inquired into, unless it be necessary for the protection of the defendant or to let in the defense which he seeks to make."
See also in this connection Posey v. Frost Motor Co., 84 Ga. App. 30 (2) (65 S. E. 2d 427), wherein this court said: "Where the evidence showed that the retention-of-title contract involved in this case had been assigned in writing on its face by the plaintiffs to a third party as security for a loan, that the loan had been repaid and possession of the instrument re-delivered to the plaintiffs, but without a written assignment back by such third party, that when suit was filed and at the trial of the case the plaintiffs were in possession of the instrument under such circumstances, the evidence made out a prima facie case of title to the instrument and the property conveyed thereby in the plaintiffs such as was sufficient to enable them to maintain an action of trover to recover possession of the property, and such being the case, the trial court erred in nonsuiting the plaintiffs."
The evidence in this case is undisputed that the seller, the original payee, was in possession of the notes. It is undisputed that the seller had repurchased the notes from the Electric Corporation.
See Dixon v. Virginia-Carolina Chemical Co., 30 Ga. App. 78 (1) (116 S. E. 662). We might add here in conclusion, (1) that the seller was the original payee of the notes in question and was in possession of the notes before the issuance of the attachment and at the time of the trial; (2) as to the other view of the case, the seller is entitled to the verdict as the transferee of the promissory notes upon which suit is brought. What we have said above applies to the general grounds. Since the special ground, to the effect that the court committed reversible error in admitting the notes in evidence because of the lack of the proof of execution by the Electric Corporation to the seller, has been fully dealt with above, along with the general grounds, we will not elaborate here.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Lawson E. Thompson, for plaintiff in error.
DECIDED JULY 15, 1954.
Saturday May 23 03:44 EDT


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