Opinion
17646.
SUBMITTED OCTOBER 9, 1951.
DECIDED NOVEMBER 15, 1951.
Cancellation, etc. Before Judge McClure. Dade Superior Court. March 12, 1951.
McClure, Hale McClure, for plaintiff in error.
Gleason Painter, Frank M. Gleason, and A. W. Cain Jr., contra.
1. "There being an affirmance of the judgment of the trial court, no ruling will be made on the motion to dismiss the writ of error." City of Hawkinsville v. Williams, 185 Ga. 396 (1) ( 195 S.E. 162).
2. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. Code, § 14-301. Value is any consideration sufficient to support a simple contract. § 14-302. An antecedent or pre-existing debt constitutes value. Services previously rendered are sufficient consideration to support a promissory note ( Newton v. Roberts, 36 Ga. App. 156 (5), 136 S.E. 98); and the mere inadequacy of consideration alone will not avoid the contract. Code, § 20-307; Austell v. Rice, 5 Ga. 472 (2).
3. A negotiable note voluntarily given in liquidation of a disputed claim is not without consideration. Stewart v. Hardin, 24 Ga. App. 611 (2) ( 101 S.E. 716); Le Bron v. Stewart, 26 Ga. App. 133 (2) ( 105 S.E. 650). Where parties enter into an agreement compromising and settling a claim about which there is a bona fide dispute, they are bound by the agreement, even though one of the contentions thereafter appears to be without foundation in law. Tyson v. Woodruff, 108 Ga. 368 ( 33 S.E. 981); Prince Hall Masonic Building Assn. v. Howard, 36 Ga. App. 169 (1) ( 136 S.E. 94); Hume v. Davison-Paxon Co., 57 Ga. App. 289 ( 195 S.E. 318).
4. A contract may be entire or severable. If entire, it stands or falls together. Code, § 20-112. If the consideration of a contract be good in part and void in part, the promise will be sustained or not, according to whether it is entire or severable. Code, § 20-305; Valdosta Drug Co v. Mashburn Drug Co., 183 Ga. 471 ( 188 S.E. 694); Dolan v. Lifsey, 19 Ga. App. 518 ( 91 S.E. 913).
5. "The free assent of the parties being essential to a valid contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will render the contract voidable at the instance of the injured party." Code, § 20-503. "Duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will." Russell v. McCarty, 45 Ga. 197. It is not sufficient to allege that a note was executed because of an empty threat made by another. To sustain a charge of duress, it is necessary to show that there was an apparent intention and ability to execute the threat that would have coerced action or inaction contrary to the victim's will. Hoover v. Mobley, 198 Ga. 68 ( 31 S.E.2d 9).
6. In the instant case, the defendant's answer to the suit on the two notes admits that they were a part of a series of six notes, resulting from an agreement between the parties whereby the plaintiff's contention, that he was entitled to a commission amounting to $15,000 out of the proceeds of the loan obtained by the defendant, was agreed to by the defendant paying the plaintiff $4000 in cash and executing six notes in the principal sum of $11,000. The answer admits that the plaintiff had rendered some service, and thus that there was some consideration given for the defendant's promise to pay the notes. The allegations, that the plaintiff "represented that he was in a position to block the loan and would do so if his demands were not mere," and that, "in order to prevent the plaintiff from blocking the procurement of the loan," the defendant agreed to pay the sum of $4000 and execute the six notes, charge only empty threats without any allegations of fact as to whether the plaintiff could have blocked the loan, or any facts which show that the defendant was coerced or constrained to act against his own will.
7. Applying the principles of law set out in the preceding five divisions of this opinion to the allegations of fact in the defendant's answer and cross-action, the answer failed to allege a valid defense, either on the ground of want of consideration or on the ground of duress. There was no error in sustaining the general demurrer to the answer and striking the same.
8. The sufficiency of the evidence to support the verdict will not be considered by this court, that question not having been made or passed upon in the court below by a motion for a new trial. Bacon Sons v. Jones, 117 Ga. 497 (2) ( 43 S.E. 689); Mackin v. Blalock, 133 Ga. 550 (4) ( 66 S.E. 265).
Judgment affirmed. All the Justices concur.
No. 17646. SUBMITTED OCTOBER 9, 1951 — DECIDED NOVEMBER 15, 1951.
C. Abbott Gardner filed his petition against S. J. Littlegreen, alleging that the defendant was indebted to him in the sum of $2500 upon two promissory notes, each dated February 2, 1949, one being in the principal sum of $2000, and the other in the sum of $1000, with interest at 5% per annum; and that the defendant had paid $500 on the $1000 note. The plaintiff prayed for a judgment for $2500, interest, and attorney's fees.
The defendant in his answer made a general denial of the allegations of the petition that he was indebted on the notes and that he had paid any sum on one of the notes sued upon. For further answer and by way of cross-action, the defendant alleged that the two notes sued upon were a part of a series of six notes aggregating $11,000, all executed on the same date, and that the four other notes had not matured. He alleged that all the notes sued upon were made without any consideration, and were void since he had executed them because of duress employed by the plaintiff; and that the notes were executed under the following circumstances: In 1948 the defendant was the owner of certain properties known as Lookout Mountain Hotel. Being in financial difficulties, he placed the properties on the market for sale, and employed the plaintiff, a real-estate broker, to sell the properties for him on a commission basis, agreeing to pay him a commission of 5% on the sale price if the plaintiff was successful in selling said properties at a price of $850,000. Pursuant to this agreement, the plaintiff made some effort to sell the properties. In order to obtain more time within which to sell said properties, the defendant decided to refinance the indebtedness which was against them, and he negotiated with one Rupe for the purpose of procuring a loan of $300,000. During these negotiations, the plaintiff contacted the defendant and informed him that he, the plaintiff, would expect a commission if the loan was completed. The plaintiff had done nothing toward obtaining such loan except write one letter to Rupe. When the defendant inquired of the plaintiff as to what commission he would expect, he stated he would accept whatever sum the defendant and Rupe thought was reasonable. Rupe informed the defendant that he thought $2500 would be a reasonable sum, in which the defendant concurred. In December, 1948, when the loan was ready for closing, the plaintiff informed the defendant that he would expect a commission of 5% of the amount of the loan, or $15,000. The plaintiff represented that he was in a position to block the loan and would do so if his demands were not met. "The proceeds of the loan being needed by defendant badly, defendant in order to prevent petitioner from blocking the procurement of the loan agreed to give petitioner $4000 in cash and to execute to him notes in the aggregate principal sum of $11,000. He further shows that he did give to petitioner the said sum of $4000 in cash, said amount being mailed to petitioner January 13, 1949, and on February 2, 1949, he executed the said notes to petitioner for the aggregate sum of $11,000, the same consisting of the $1000 note and the $2000 note, copies of which are shown as Exhibits `A' and `B', and, to the best of petitioner's recollection, four other notes as hereinbefore described." The defendant alleged that the sum of $4000 paid to the plaintiff was more than reasonable compensation for any and all services rendered by the plaintiff in obtaining the loan from Rupe; that the plaintiff had no part in procuring the loan; and that each and every note of said series was executed "without any legal or valid consideration therefor." It was alleged that the plaintiff held all the notes, and no rights of any innocent holder or purchaser have intervened. The prayers were that the plaintiff be enjoined from selling and disposing of any or all of the notes; and that the plaintiff be required to surrender all of them, and that they be canceled.
To this answer and cross-petition the plaintiff filed his general and special demurrers. The trial judge sustained one ground of the general demurrer, which recited that the "answer as a whole, or none of its parts, sets forth a valid defense to the notes sued upon." The defendant filed exceptions pendente lite. The bill of exceptions recites that the case proceeded to trial on its merits, and after the plaintiff had introduced the note in evidence, and proof as to notice for attorney's fees, verdict and judgment were returned in favor of the plaintiff; and that the case was illegally terminated. Error is assigned on the order sustaining the demurrer to the defendant's answer, and on the action of the court in permitting the verdict to be rendered and the judgment to be entered. The exceptions pendente lite, assigning error on the sustaining of the demurrer to the answer, are in the transcript of the record.
The plaintiff has filed a motion to dismiss the writ of error on several grounds, which need not be stated here.