v.n Norden Et Al. v. Auto Credit Company, Inc., 109 Ga. App. 208, 135 S.E.2d 477 (1964)

Status: DECIDED

Docket Number: 40356

Parts: Action on note, etc. DeKalb Civil and Criminal ...

Linked as:

Text

Ronald J. Armstrong, contra.Scott Walters, Jr., for plaintiffs in error.

1. Where no error is assigned on the judgment overruling the motion for a new trial on the general grounds, and there is no proper assignment of error in the bill of exceptions on the direction of the verdict, the quantum of evidence is not before us for consideration.

Auto Credit Company, Inc. brought suit against E. P. Van Norden and his wife to recover a deficiency judgment against them on a conditional sale contract and note which the Van Nordens had executed to Spring Street Motors (apparently a trade name of R. C. Foster) in connection with a purchase by them of an automobile, the contract having been assigned and the note indorsed without recourse by the payee to Auto Credit Company, Inc. It is alleged that the obligation became in default, that the contract was foreclosed and the automobile described therein brought to sale, and that after applying the receipts from the sale to the payment of the foreclosure costs and note, an unpaid balance of $547.28 remained. It is further alleged that lawful notice had been given the Van Nordens to bind them for the payment of attorney's fees. The contract and note were on the same printed form and a copy was attached to the petition.

Defendants filed their answer denying any indebtedness and further pleaded that there had been a material alteration of the contract "by the addition of a notary public subsequent to their signing, not in their presence and without their consent."

The copy of the contract attached indicates that it was officially attested by R. C. Foster as a notary. The bill of exceptions recites that upon a hearing of the plea of material alteration counsel stipulated that "1. The defendants signed the instrument attached to plaintiff's petition in the view of Mr. R. C. Foster, alleged owner of Spring Street Motors, each of the defendants and Mr. R. C. Foster were present at the time of the signing and no other person was present. 2. There was no discussion among the parties defendant and the said Mr. Foster concerning the question of whether said document should or should not be witnessed, either by a common witness or a notary public. 3. Subsequent to the signing of said instrument by the defendants the notary, R. C. Foster, added his signature and seal to the contract out of their presence and without their knowledge, they neither having objected to it nor assented to it."

The plea was overruled. The case then went to trial, the evidence consisting of depositions of the defendants, the instrument in question, and the plaintiff's ledger card. The trial court directed a verdict in favor of the plaintiff. Thereafter the defendants filed a motion for a new trial on the general grounds which was overruled. In the bill of exceptions error is assigned only on the denial of the plea of non est factum and on the direction of the verdict on the sole ground that it is contrary to law and the principles of justice.

1. There is no proper assignment of error on the direction of a verdict, Moody v. Southern R. Co., 87 Ga. App. 509 (74 SE2d 379); Roberson v. First Nat. Bank of Atlanta, 99 Ga. App. 156 (107 SE2d (169). This particular document is on a single piece of paper but is in the form of two instruments. At the top of the page is a conditional sale contract describing the automobile being purchased and stating that the deferred payments "are evidenced by promissory note of even date herewith," following which are the signatures of the purchasers and the witnessing signature of R. C. Foster, notary public. Immediately below this is the promissory note, also signed by the parties but not witnessed. If the instruments could be considered as separate, the ruling on the plea would be controlled by Code 20-802, which requires that a material alteration of a contract must, to render it void, be not only intentional but with intent to defraud the other party. It is here undisputed that the witnessing notary did in fact see the defendants sign the instrument, and that they did in fact sign it intending the legal consequences of the act, and that no fraud was practiced on them. With this view of the document the plea of non est factum was not sustainable. If, on the other hand the entire document be considered a negotiable instrument, then the witnessing signature appears at the proper place up in the body of the instrument and not after the signatures of the makers to the promissory note, which was the second set of signatures at the bottom of the page. Applying the rule relating to negotiable instruments in Code 14-906 that any material alteration of the instrument without the assent of all the parties thereon will void it without regard to fraudulent intent, [2] and taking the narrow interpretation of this rule laid down in Cook v. Parks, 107 Ga. App. 676 (131 SE2d 123). Upon the subsequent trial of the case the defendant testified that the whole contract was blank when they signed it, and further in answer to the question, "Your contention is not that you do not owe the money but simply the fact that the contract was notarized by someone not in your presence, is that correct?" he stated, "Well, as far as the notary is concerned, I'm not too much concerned about that."

It thus appears that when the defendants signed the promissory note it was a blank form; all the blanks were filled in after the makers left, and one of those blanks was that of the notary who saw the defendants actually sign the conditional sale contract embodied in or attached to the note. The delivery of a blank note or contract by the maker to the payee constitutes prima facie authority in the latter to complete the instrument. Code 14-214; Ryle v. Farmers &c. Bank of Gordon, 33 Ga. App. 459, 462 (127 SE 233). The only reason the addition of the signature of a witness to a conditional sale contract is material is that it allows recordation; since such instruments are recorded in the usual course of business the witnessing signature is a part of the completion of the instrument in this sense, and the testimony of the defendant himself shows that when he delivered the document back to the payee to have the blanks filled in he did not withhold his assent to the signature of the witness who had in fact witnessed his signature and that of his comaker. The filling in of this blank was accordingly included in the implied authority to fill in all the blanks prior to the signature of the witnesses at the bottom of the page following the promissory note.

It appears more logical to us in this instance to consider the instruments as severable and apply to the conditional bill of sale the rule of Code 20-802 rather than of Code 14-906, but the same result is reached in either event. Under the first interpretation the addition of the signature would not void the instrument because there was no trick, concealment, or fraudulent intent involved. Under the second, if there was any error in entering up such a judgment under the wording of the stipulation on the trial of the plea (no evidence being introduced) it was rendered harmless by the evidence on the trial of the main case which showed that the payee did in fact have authority to complete the instrument.

Judgment affirmed. Eberhardt, J., concurs. Felton, C. J., concurs in the judgment.

Notes:

1. This is apparently changed by the provisions of the UCC, since by Code Ann. 109A-9-105 (1b) "a writing or writings which evidence both a monetary obligation and a security interest in or lease of specific goods" is defined as "chattel paper." The form of a negotiable instrument is specifically defined in Code Ann. 109A-3--104.

2. This rule is changed by Code Ann. 109A-3--407.