Fong v. Augusta Ice & Coal Co.

194 S.E. 183, 185 Ga. 117, 1937 Ga. LEXIS 686

• Court: Supreme Court of Georgia
• Decided: December 3, 1937
• Docket: No. 11941
• Status: Published

Opinion

Atkinson, Presiding Justice.

1. Whether or not the petition stated sufficient ground for reforming the notes, the allegations in reference to the contract of conditional sale showed the same agreement as to payment of instalments of purchase-money; and the case being in default, the judgment was demanded as to such instalments, regardless of whether the notes were reformed as prayed. It follows that even if the rulings were erroneous as related to reformation, they do not constitute cause for a reversal. Cozart v. Johnson, 181 Ga. 337 (2) (182 S. E. 502) ; Ellis v. First National Bank of Atlanta, 182 Ga. 641 (4) (186 S. E. 813).

No. 11941. December 3, 1937.

2. The suit being in equity, the plaintiff could properly ask a judgment for the entire indebtedness, including unmatured instalments of purchase-money; and the court did not err in overruling the demurrer challenging the claim as to such instalments. While the court did not exercise its power to render judgment in this ease for more than the matured instalments, yet, in' molding the decree, provision should have been made for postponing a sale of the property in case the defendant should, at any time before the sale, pay off the amount then due, together with the costs with which he is chargeable up to that time. Direction is given that the judgment be so amended as to include such provision. Brown v. Farmer, 94 Ga. 178 (21 S. E. 292) ; McCurry v. Pitner, 159 Ga. 807 (126 S. E. 781).

3. The assignment of error on striking, the answer, not being insisted on in the brief of counsel for the plaintiff in error, is treated as abandoned.

Judgment affirmed, toith direction.

All the Justices concur. Hammond, Kennedy <& Tow, for plaintiff in error. Hull, Bm'rett, Willingham & Towill, contra.