Laster v. Stewart & Co.

15 S.E. 42, 89 Ga. 181

Opinion

Judgment affirmed.

A mortgage on personalty from Mrs. Laster to Norman & Son was foreclosed by Stewart & Co. as transferees, and Mrs. Laster interposed her affidavit of illegality on the following grounds : (1) The mortgage was made to secure the payment of a debt already contracted and owing by her husband, J. P. Laster, to Norman & Son, and at the time the mortgage was given she did not owe the mortgagees anything whatever, and does not now owe anything upon the mortgage. (2) At the time of the execution of the mortgage Norman & Son were to let her husband have $150, which amount was never received by her husband, and therefore the consideration of the mortgage has failed in that sum, and said sum is not now due by her to the plaintiffs. (3) The mortgage was deposited with Stewart & Co. for the purpose of securing the payment of the sum of $134.54, and Stewart & Co. have no right to enforce the mortgage for more than that amount. (4) The mortgage was transferred to Stewart & Co. to secure the payment of her husband’s debt with Stewart & Co., which debt has been fully paid off' and discharged; and Stewart & Co. are not innocent purchasers without notice.

The sum named in the mortgage to secure which it was made, is $250 with interest at eight per cent, after maturity, and ten per cent, attorney’s'fees. It is dated November 21, 1887, and due October 1st after date. On it is a receipt for $23 dated November 30, 1887. It was foreclosed for $227 principal, $3.75 interest to date of foreclosure, December 19, 1888, and $23 attorneys’ fees, besides further interest at eight per cent. It also bears an entry of transfer to Stewart & Co., May 21, 1888, signed by Norman & Son. It shows also the following entry written in pencil and attempted to be rubbed off, but still distinct enough to be read : “This note was left as collateral to a $134.54 account of J. P. Laster, assured by Collins and included in Ms note of $188.70, this May the 21st, 1888.” The testimony at the trial was conflicting. On April 23, 1891, the jury found for the plaintiffs $227 principal and $45.40 interest. The court denied a new trial on condition that the plaintiffs write off $74.93 from the principal and the interest of said sum from date of maturity. This condition having been complied with, the defendant excepted to the overruling of the motion, alleging that the errors therein complained of could not be met by writing off any part of the verdict and judgment, but if so, the verdict should have been written off to $59. The grounds of the motion, besides those alleging that the verdict was contrary to law and evidence, are that the court erred in charging the jury as follows :

“If Mrs. Raster made an arrangement to secure credit with ~W. P. Norman & Son and gave her note for the payment of the goods purchased from them on her credit, she would be liable therefor. If she gave her note to W. P. Norman & Son and deposited it with them or permitted her husband to buy goods on the faith of her note deposited previously to purchase the goods, then it would be an original undertaking on her part for the entire debt, and she would be liable therefor. If she made an arrangement to buy goods, or if she deposited her note for the purpose of purchasing goods and purchased them herself or allowed her husband to purchase them upon the faith of the note that was deposited to secure the payment of such purchase, she would be liable thereon. But if J P. Raster, her husband, negotiated for credit with W. P. Norman & Son, and the note was given by Mrs.' Raster to pay her husband’s debt, then it would be void as against her in the hands of W. P. Norman & Son. If she was the original undertaker, if the goods were purchased by her upon a note deposited by her with the view of having the goods purchased by herself, or by authorizing her husband to purchase them for her, and she gave a writing m conformity or in renewal of such a note, she would be liable.” The errors assigned on the foregoing instruction are, that the evidence failed to show that the goods were sold on her credit; that the evidence showed that the two notes, the foundation of the note sued on, were given for two others given in 1886 and 1887, and both notes given on the same day, February 18, 1887; and that the court should have charged, if either of the notes were given in renewal of account made with or credit given to her husband, then as to the amount of that renewal they should have found for the defendant.

The following instructions were assigned as error generally: “Although the debt may be void between her and W. P. Norman & Son, if it was transferred by W. P. Norman & Son to Thos. D. Stewart & Oo. before it was due as collateral security, then T. D. Stewart & Co. would be entitled to recover although the debt may be void as between W. P. Norman & Son and Mrs. Lizzie Raster. If it was her debt, then Thomas D. Stewart & Co. would be entitled to recover whatever is found to be due upon the mortgage.”

J. F. Wall aud Hall & Hammond, for plaintiff in error. E. J. Reagan and W. T. Hicken, by brief, contra.