Hodson v. Scoggins
Hodson v. Scoggins
Opinion of the Court
The first assignment of error is
After the defendant’s general demurrer was sustained with leave to amend given the plaintiffs, the plaintiffs amended their petition by striking Miles B. Sams as a party plaintiff so that C. E. Hodson remained as the sole plaintiff. The defendant renewed his general demurrer, and on the hearing such renewed general demurrer was sustained, and such judgment presents the sole remaining question for decision in the case. There was no special demurrer as to nonjoinder. See Code § 81-304, catchword “Nonjoinder.”
The typewritten stipulation quoted above must be considered as a part of the note in question. Adcock v. Mandeville Mills, 182 Ga. 244, 246 (185 S. E. 288); Farmers Bank of Nashville v. Johnson, King & Co., 134 Ga. 486 (1) (68 S. E. 85, 30 L. R. A. (NS) 697, 137 Am. St. Rep. 242). While there exists an apparent conflict between this and the printed provisions as to payment, under the general rule of construction the typed provisions will- prevail over the printed matter in such instance. Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga. App. 524 (1) (96 S. E. 583); Taylor v. Dunaway, 79 Ga. App. 754, 758 (54 S. E. 2d 381). Under the construction thus placed upon it, the note is equivalent to two obligations in one.
In Nagel v. Lutz, 41 App. Div. 193, (58 N. Y. S. 816) a prom
Code § 14-412 provides: “Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others.” Relying as they do on the above Code section, the dissenting opinions necessarily interpret the instrument in question as being one payable to two or more-payees jointly. In Hill v. Wadley Southern R. Co., 128 Ga. 705, 713 (57 S. E. 795), Justice Lumpkin had occasion to define the word “joint” as follows: “As a legal term, the word is generally used to mean joined together in unity of interest or liability.” Tested by this standard, the note, now before us is not payable to two or more payees jointly but is payable to one of the several payees as regards the first $1,000 of the principal amount.
In our opinion the instrument involved in the present case is not payable to the order of two or more payees jointly so as to come within the general rule upon which the dissenters have predicated their opinions. This conclusion is not altered by the decisions of this court in Boatenreiter v. Fulton Nat. Bank, 61 Ga. App. 521, 529 (6 S. E. 2d 148) and Fulton Nat. Bank v. Didschuneit, 92 Ga. App. 527 (1) (88 S. E. 2d 853) to the effect that a negotiable instrument payable to two or more persons jointly must be indorsed by all in order to pass title, since, under the view here taken, the instrument in question does not create a joint interest in the payees as to the amount sued for. The obligation sued on is for a definite amount payable independently to one of the several payees named in the instrument. The
Code § 14-403 provides: “The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee a part only of the amount payable or which purports to transfer the instrument to two or more indorsees severally does not operate as a negotiation of the instrument; but where, the instrument has been paid in part, it may be indorsed as to the residue.” The purpose of this last cited section is to prevent a payee or payees from varying or enlarging the contract initially made by the maker of the instrument. When a maker executes a negotiable instrument payable to one payee or more, jointly, he subjects himself to one lawsuit. If the payee in an instrument transfers it to two or more indorsees severally, such an indorsement subjects the maker of the instrument to two or more suits to which he was not liable at the time he executed the instrument. But even if the indorsement is to two or more indorsees severally the indorsement does not become void but possibly robs the instrument of its negotiability. The indorsement could be enforced as an assignment under the law of assignment or partial assignment. Under partial assignment the assignee may sue the maker with his consent or if the maker is estopped to contest it. In this case the maker subjected himself to two lawsuits when he executed the instrument because he did not sign a joint obligation but he signed one obligation which was due entirely to two payees and another obligation which was due entirely to another and separate payee. For the purposes of this case it makes no difference whether the instrument was negotiable in the hands of Siler or his assignees, the maker made two separate contracts in one and could not object to two lawsuits. It has even been held that where a negotiable instrument is indorsed to two or more indorsees severally an action by one of the several indorsees lies, provided the other several indorsees are made
This assignment, under the law, could only assign whatever interest Siler had in and to the note and of course it could have no bearing on the rights of the other two payees, and the assignees of the note could only enforce it to the extent to which Siler could have enforced it. The Georgia cases cited in the dissents have no application to the facts of this case. They are ob
The court erred in sustaining the renewed general demurrer.
Judgment reversed.
Dissenting Opinion
dissenting. The note in this case was payable to the order of James K. Puckett and Annie Puckett and E. H. Siler, and stated in part: “The first $1,000 payable herein, shall be payable to E. H. Siler and when paid, shall constitute the full interest of this instrument and the property secured thereby vested in the said E. H. Siler; payment in the said Siler shall be payment upon this note for the first $1,000.” The indorsement or assignment reads in part as follows: “For value received the undersigned, hereby, sell, assign, and transfer to (Miler B. Sams, Cecil Hodson) to its successors and assigns without recourse, the within note signed by J. B. Scoggins dated April 28th, 1959, together with all the rights, powers and privileges contained therein, and all right, title and interest in and to the property therein described.”
Code § 14-412 provides: “Where an instrument is payable to the order of two or more payees or indorsees who are not partners, all must indorse, unless the one indorsing has authority to indorse for the others.” It is not alleged that E. H. Siler had authority to indorse the note for James K. Puckett or Annie Puckett, nor is it alleged that they were partners. In the case of Fulton Nat. Bank v. Didschuneit, 92 Ga. App. 527, 532 (88 S. E. 2d 853), while Judge Felton dissented as to another question presented by the record, this court unanimously (six judges) held that a check made payable to 2 or more persons must, in order for an indorsement to be valid, be indorsed by all such payees.
In the present case where the alleged right of the plaintiffs, or later the sole plaintiff, to recover is based on an assignment by one of three joint payees, and the petition does not disclose that such payees were partners or that the indorsing payee had authority from, the joint payees to so indorse the note, the judgment of the trial court sustaining the defendant’s general de
I am authorized to say that Judge Bell agrees with what is said here in this dissent.
Dissenting Opinion
dissenting. Since the defendant here chose to use a negotiable instrument payable to the order of three persons, I feel that it necessarily follows that the provisions of the Uniform Negotiable Instruments Law, as enacted in Georgia, govern the instrument. Furthermore, while the typed portion of the instrument provides that the first $1,000 shall be payable to one of the three payees, I cannot conclude that this fact is sufficiently persuasive in itself to constitute a waiver by implication of the policy of the law that the instrument must be transferred in its entirety. This policy is derived from Code § 14-403 which makes clear that an indorsement must be an indorsement of the entire instrument and a transfer to two or more indorsees severally does not operate as a negotiation. This conclusion is further reinforced by Code § 14-412, which provides that where an instrument is payable to the order of two or more payees who are not partners, all must indorse unless the one indorsing has authority to indorse for the others. See Fulton Nat. Bank v. Didschuneit, 92 Ga. App. 527, 532 (88 S. E. 2d 853). These sections lead me to the conclusion that there is no authority to support a rule that a negotiable instrument may be transfei'red in part by an assignment by one of several joint payees. Furthermore, allowing an action to be maintained upon an attempted assignment of part of the proceeds of a negotiable instrument conflicts with prior holdings that a partial assignment does not give the assignee such title as can be enforced by a common-law action. See Graham v. Southern Ry. Co., 173 Ga. 573 (161 S. E. 125, 80 A. L. R. 407, and Shearer v. Shearer, 137 Ga. 51 (72 S. E. 428). In the latter case, it was held that a partial assignment of one’s interest in a primissory note is not binding on the maker of the note unless accepted or assented to by the
I am authorized to say that Judge Nichols joins with me and concurs in these conclusions stated.
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