Nocam Repmub, Inc. v. Freeman
Nocam Repmub, Inc. v. Freeman
Opinion of the Court
This case involves an action on a promissory note which the plaintiff Paul L. Freeman contends was made by Bumper Distributors of Atlanta, Inc. to him with reference to the sale and purchase of business equipment wherein title was to remain in Freeman until the note and expenses of collection are fully paid and discharged.
Nocam Repmub, Inc., the defendant, had accepted the assignment of this note and assumed the obligation of Bumper Distributors of Atlanta, Inc. under the note. The defendant contends that the note was made payable to Paul’s Auto Paint, Inc. and it made installment
Defendant moved for summary judgment based upon the affidavit of one Lonnie R. Johnson that he in his individual capacity had entered into a specific agreement whereby the assets of Paul’s Auto Paint, Inc., which had been previously purchased by Bumper Distributors of Atlanta, Inc., were to be transferred to him and that in conjunction therewith he assumed the existing indebtedness from Bumper Distributors of Atlanta, Inc. to Paul’s Auto Paint, Inc. and that he had never accepted the assignment of or assumed any indebtedness of any party to Paul L. Freeman.
In opposition to the motion for summary judgment plaintiff offered his affidavit that after the execution of the promissory note to him he had never been advised or received any indication that Lonnie Johnson had assumed personal responsibility for the note until the defendant filed its motion for summary judgment and he had received 80 installment payments under said promissory note all of which were by check or draft from the defendant or another corporation and none were from Lonnie Johnson personally. The plaintiff’s certified public accountant by affidavit testified with reference to the various accounting he had performed for Paul L. Freeman and his wife and attached income tax returns as exhibits.
After further discovery defendant’s motion for summary judgment was denied, and the case proceeded to trial. During the trial defendant dismissed its “counterclaim” for fraud brought against the plaintiff for altering this note. The jury returned its verdict in favor of the plaintiff for the principal sum of $25,748, plus interest and at
1. Defendant’s first enumeration of error is that the trial court erred in denying its motion for summary judgment in that as a matter of law it was entitled to judgment. A trial having been held, we will review this enumeration of error only if the evidence demanded a verdict in favor of the defendant. Defendant also enumerated error as to the general grounds of its motion for new trial and the trial court’s denial of defendant’s motion for directed verdict in regard to a set off, that is, the verdict of the jury was contrary to law, contrary to the weight of the evidence and strongly against the weight of the evidence. We find no merit in this complaint in that there was considerable controversial evidence with reference to the making of the note in question, and there was evidence presented by the plaintiff that he was the holder of the note made in his favor, albeit an examination of same discloses that the name Paul’s Auto Paint, Inc. was stricken and plaintiff’s name inserted therein. Where an alteration is made in an instrument it is presumed to have been made prior to signing unless there is a contrary showing or denial by the parties. See Overcash v. First Nat. Bank of Atlanta, 115 Ga. App. 499, 503 (155 SE2d 32). There was testimony here reflecting that the name of the payee was made either before or at the closing of the sale within the knowledge of all parties involved in the sale in the making of this note. The evidence supports the finding of the jury that there were monies due and unpaid and we find no merit in defendant’s complaints. See Kent v. Hunt & Assoc., 165 Ga. App. 169, 170 (2), 172 (9) (299 SE2d 123); Shaw v. Miller, 213 Ga. 511, 513 (100 SE2d 179); Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 553 (43 SE2d 784); Scott v. Imperial Hotel Co., 75 Ga. App. 91 (2), 95 (42 SE2d 179). None of these enumerations of error has merit.
2. Examination of the argument portion of defendant’s brief shows it failed to follow the various enumerations of error in that the defendant seeks to argue collateral issues such as “standing” of the plaintiff to proceed against the defendant, and defendant’s right to a directed verdict; and it simply does not follow the proper procedure required by Rule 15 of this court with reference to the sequence of argument or arguments in the brief in following generally the order of the enumerations of error. However, we have examined the argument and will endeavor to pass on all enumerations of error properly argued therein not covered in the ruling above.
3. The trial court sustained plaintiff’s oral motion in limine preventing the defendant from presenting evidence imputing a tax fraud by the plaintiff as having nothing to do with the case and that any evidence as to what the plaintiff reported on his tax return has
4. Defendant has enumerated error to a charge to the jury by the court “authorizing the use of parol evidence to change and vary the terms of a contract which the court had previously ruled was ‘clear and unambiguous.’ ” The charge to the jury was with reference to the identity of the payee in the note. This was the instruction to the jury as to the matter in dispute since the corporation, Paul’s Auto Paint, Inc., was stricken through by a line and the plaintiff’s name Paul L. Freeman, as payee, was substituted. The trial court instructed the jury that there was an ambiguity “in that the parties are in dispute in that the original has been modified without an initial or acknowledgment of the parties, but by some explanation by evidence which you can take in your considerations and your deliberations in that regard,” and that the jury was to consider the evidence with regard to this ambiguity and determine who were the true parties in the promissory note itself. The court then instructed the jury that the principal amount of the payment and the terms of the payment were clear and unambiguous and not disputed by the parties. The court then
5. Prior to the trial defendant moved to have Paul’s Auto Paint, Inc., a Georgia corporation, added as an indispensable party, contending therein that the plaintiff purposely avoided the inclusion of this corporation to avoid the set off of a judgment held by the defendant against Paul’s Auto Paint, Inc., citing S.D.H. Co. v. Stewart, 135 Ga. App. 505 (218 SE2d 268), as a case in point with respect to the necessity of joining this corporation as a party plaintiff, the trial court having denied the motion. The primary consideration as to whether a party is indispensable is whether any judgment which might be rendered would be adequate in the absence of the parties sought to be enjoined. See Peoples Bank of LaGrange v. N. Car. Nat. Bank, 230 Ga. 389 (197 SE2d 352); Coe v. Greenville Credit &c. Co., 164 Ga. App. 521 (298 SE2d 36). Here the jury was adequately charged that it must find that the plaintiff rather than the corporation was the payee before rendering a judgment for the plaintiff. The rights of the corporation (Paul’s Auto Paint, Inc.) were in no wise prejudiced because it was not made a party. The trial court did not err in its determination that Paul’s Auto Paint, Inc. was not an indispensable party to the action.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.