Behrens v. Universal C. I. T. Credit Corp.

Court of Appeals of Georgia

Behrens v. Universal C. I. T. Credit Corp.

92 S.E.2d 37, 93 Ga. App. 406, 1956 Ga. App. LEXIS 754

Court of Appeals of Georgia·Decided February 20, 1956·No. 36057·Published

Opinion

Carlisle, J.

Where, to an execution issued on the foreclosure, by the assignee, of a conditional-sales contract, covering the sale of an automobile, an affidavit is interposed, by the purchaser of the automobile, upon the ground that the execution is proceeding illegally because the contract, which is a negotiable instrument, had been materially altered since its execution and is void, and it is stipulated between the parties that the contract has been materially altered and if it is a negotiable instrument that it is void, and it appears from the terms of the contract that the parties contemplated its assignment to the designated assignee and payment of the monthly installments at one of the offices of the assignee, [407]*407but the contract contains no words of negotiability in that it is not made payable to order of anyone or to bearer, it is not a negotiable instrument. Peck v. Calhoun, 38 Ga. App. 764 (145 S. E. 528); Suddath v. Blanchard & Calhoun, 44 Ga. App. 149 (160 S. E. 686); and see particularly J. W. McNees Motor Co. v. Brumfield, 157 Miss. 132 (126 So. 898), where a contract of very similar import was held not to be negotiable. The trial court, consequently, did not err in sustaining the demurrer to the affidavit of illegality as stating no issuable defense and did not err in dismissing the affidavit of illegality.

Decided February 20, 1956. Casper Rich, for plaintiff in error. ■ Morton P. Levine, contra.

Judgment affirmed.

Gardner, P. J., and Townsend, J., concur.

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Carlisle, J.

Where, to an execution issued on the foreclosure, by the assignee, of a conditional-sales contract, covering the sale of an automobile, an affidavit is interposed, by the purchaser of the automobile, upon the ground that the execution is proceeding illegally because the contract, which is a negotiable instrument, had been materially altered since its execution and is void, and it is stipulated between the parties that the contract has been materially altered and if it is a negotiable instrument that it is void, and it appears from the terms of the contract that the parties contemplated its assignment to the designated assignee and payment of the monthly installments at one of the offices of the assignee, [407]*407but the contract contains no words of negotiability in that it is not made payable to order of anyone or to bearer, it is not a negotiable instrument. Peck v. Calhoun, 38 Ga. App. 764 (145 S. E. 528); Suddath v. Blanchard & Calhoun, 44 Ga. App. 149 (160 S. E. 686); and see particularly J. W. McNees Motor Co. v. Brumfield, 157 Miss. 132 (126 So. 898), where a contract of very similar import was held not to be negotiable. The trial court, consequently, did not err in sustaining the demurrer to the affidavit of illegality as stating no issuable defense and did not err in dismissing the affidavit of illegality.

Decided February 20, 1956. Casper Rich, for plaintiff in error. ■ Morton P. Levine, contra.

Judgment affirmed.

Gardner, P. J., and Townsend, J., concur.

Behrens v. Universal C. I. T. Credit Corp., 92 S.E.2d 37, 93 Ga. App. 406, 1956 Ga. App. LEXIS 754 (Ga. Ct. App. 1956).

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