Ramsey-Fender Motor Co. v. Chapman

ON REHEARING. Jenkins, P. J. The very strong and able motion for rehearing, filed by plaintiff in error in this case, has caused the court to enter upon a reconsideration of the principles involved. The questions raised in this case involve fine discriminations along several principles of law. In order to make this statement more clear, perhaps it would be in order to give a more complete statement of the facts disclosed by the record. The affidavit of illegality filed by the defendant in the foreclosure proceedings set up that he had originally bought a Ford car from plaintiff on July 10, 1929, giving his purchase-money note therefor in the sum of $480, payable in installments of $40 each; that on May 19, 1930, when the instrument now sought to be foreclosed was given, he owed on said purchase-price only the sum of $80; that plaintiff came to defendant and asked him to allow them to retake his' car and refinance it in order to allow them to borrow other money; and that as a matter purely of accommodation he gave a new instrument in the form of a purchase-money note in the sum of $360, which included the $80 actually owed and the remainder purely as accommodation to the payees, for the purposes indicated. It appears from the record that at the time the new instrument was executed by defendant a new contract of purchase and sale of the original car was also executed, signed by each of the parties. All these facts appear from the record to have been proved without dispute; and also the further fact that the $80, which had remained unpaid under the original transaction, had been fully discharged prior to the date of the foreclosure; and that the instrument sought to be foreclosed, after having been traded to a third person, had been received back by the payees, prior to the foreclosure; and that the proceedings were instituted in the name of the payees themselves. After giving full consideration to the various grounds of argument, presented by the plaintiff in his motion for rehearing, we are still of the opinion that the decision as originally rendered is correct; and the principles and authorities stated therein are controlling in this case. The ease of Rheney v. Anderson, 22 Ga. App. 417 (supra), presents almost an identical situation; and the reasoning and authorities cited in the concurring [388] opinion in that case, which was delivered after full and mature deliberation, we think are controlling here. As we see the instant case, as between the parties to the instrument, there was an absolute want of consideration except as to the $80, which, according to the undisputed evidence, has been paid. It is true that the defendant can not be heard to deny the promise to pay the $360, but as we see it, he can be heard to attach the promise to pay on the ground that it was a nudum pactum in so far as the $280 was concerned. It was said by the writer in his special concurrence in the case of Rheney v. Anderson, supra, that “if the consideration is good, the promise must be enforced as expressed; while on the other hand, if the contract be without consideration it matters not how absolute the admitted promise may be; as a nudum pactum it can not avail. The defense which is claimed in this case is not dependent upon an unauthorized attack upon the terms of an absolute and unambiguous promise; but the purport of the plea is that, while admitting the promise, it is nevertheless void, since, as between the parties, it is without the support of any valid consideration.” As was said by Mr. Justice Cobb, in Byrd v. Marietta Fertilizer Co., supra, “It is undoubtedly the general rule that the consideration of a contract can always be inquired into where the controversy is between the original parties. But is this an effort to inquire into the consideration? Where the promise as stated in the writing is admitted, the promisor can show that there was no consideration; or that there was a consideration which had failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts.” In like manner in the instant case, since a lack of consideration is certainly as fatal as a subsequent failure of consideration, even though the promise be admitted, the promisor should be enabled to show that the agreement is without consideration either wholly or in part. We do not think that the case of Barfield v. Dwight, 146 Ga. 824 (92 S. E. 633), cited by counsel in his motion for rehearing, would require or authorize a holding contrary to what has been said. In that case it appeared that a landowner had made a contract with another to work as a cropper, and that subsequently he took from the same person a rent note converting the relationship into one of landlord and tenant. The court held that the new contract was a novation of the old contract and that the landlord was entitled to [389] foreclose his lien'against his tenant; and that the previous agreement would not prevent him from doing so, since it was superceded by the second agreement, even though it might be shown that the contract was not to have its full legal effect, but was made to provide him with collateral to be used in.obtaining credit. The only ruling in this decision is to the effect that a party can not impeach his written contract by parol evidence, for the purpose of showing that it was binding for one purpose and not binding for another purpose. The question involved was one of remedy. There is no mention whatsoever to the effect that if, as between the parties themselves, the defendant had not been given the use of the land, or that if he as cropper had paid for it, he could not thereafter attack a foreclosure of the rent claim by the landlord himself on the ground of a lack or failure of consideration. Judgment adhered to.