Opinion
33532.
DECIDED NOVEMBER 30, 1951.
Complaint; from Fulton Civil Court — Judge Arnold. February 6, 1951.
William F. Lozier, for plaintiff in error.
Houston White, Emory A. Schwall, contra.
1. A set off which had not accrued to the defendant at the time of the filing of the plaintiff's suit was properly stricken on demurrer.
2. The judgment of the court, without the aid of a jury, was authorized by the evidence.
a( a) It is too late to raise for the first time in the brief of counsel in this court the question of whether or not the plaintiff pursued the wrong remedy.
3. To preserve a trial court's ruling on a plea for consideration by this court, exceptions pendente lite must be filed within twenty days and error assigned thereon when the ease is brought here by bill of exceptions; or, if the bill of exceptions is tendered within twenty days of the ruling on the plea, an exception to the ruling and an assignment of error thereon may be included therein.
4. Parol evidence is admissible to show that a written contract is tainted with usury.
( a) A question on which a ruling by the trial court was not invoked and not given will not be considered by this court.
DECIDED NOVEMBER 30, 1951.
Ellis Ferrell sued Joel Lunsford in the Civil Court of Fulton County for money had and received. The petition, field on March 6, 1950, alleged in substance: that the defendant, acting pursuant to the power of sale in a loan deed, caused to be sold on October 4, 1949, certain real estate and personal property owned by the plaintiff subject to the loan deed; that the balance on the loan was $2046.58; that the defendant purchased the property at the sale for $3950; and that the defendant was indebted to the plaintiff in the amount of the difference, to wit: $1903.42.
The defendant demurred to the petition on the following grounds: (1) generally on the ground that no cause of action was set forth; (2) specially on the ground that a copy of the loan deed referred to in the petition was not attached; (3) specially to paragraph 7, on the ground that the allegation that the difference between the sale price of the property and the balance due on the loan is the amount had and received by the defendant, and which he has failed and refused to pay to the plaintiff, is a conclusion of the pleader; and (4) the defendant included, within the demurrer, a plea that a receiver had been appointed for all of the property of the plaintiff on October 21, 1949, and that only he could prosecute the action. The defendant also filed an answer, plea and setoff, which (1) admitted that the balance on the loan was $2046.58, and that he purchased the property at the sale for $3950; (2) denied that the plaintiff was entitled to the difference; (3) contended that the plaintiff had no right to bring any action because the court had appointed a receiver of all his property; (4) showed that the defendant is entitled to a credit against the $1903.42 for certain payments made out of the proceeds; and (5) stated that other offsets would be added by amendment, when the amount was known. The court overruled the general and special demurrers. No exceptions pendente lite were filed.
The plaintiff amended by substituting $1436.58 for $2046.58 as the amount due on the loan, and by changing the amount sued for from $1903.42 to $2513.42. The defendant amended his answer, plea and setoff, by admitting that the balance on the loan was $2046.58, but denying that it was $1436.58; by attaching a copy of the loan deed, and by striking the paragraph containing the setoffs, and adding a new paragraph containing substantially the same figures, and the following new subparagraph: "Payment made to the Marshal, Civil Court of Fulton County on May 15, 1950 in Suit No. 198915, Civil Court of Fulton County, in a foreclosure action brought by American Service Co. against property conveyed by Ellis Ferrell to Mrs. Mary Caldwell by deed to secure debt, which is attached hereto as Exhibit 1, the said foreclosure property being also included in the deed under power from Ellis Ferrell to Joel Lunsford dated October 5, 1949 and recorded in Deed Book No. 2446 at page 437, a copy of said deed under power from Ellis Ferrell to Joel Lunsford being attached hereto marked Defendant's Exhibit 2 . . . $860.00."
The plaintiff field demurrers and motions to strike this amendment to the answer, attacking it on the grounds that it accrued May 15, 1950, and thus was not in existence when the plaintiff field suit on March 6, 1950; that the property was not specifically identified; that there is no allegation that the property purchased at the foreclosure sale was the property conveyed in the deed to secure debt; that the power of sale does not contain the power to sell the personal property, and hence the defendant did not obtain title to the property; and that the paragraph failed to set forth a cause of action. The court ruled that the power of sale must be strictly construed, and that it did not cover the personal property, and paragraph 4 (i), which contained the $860 setoff was stricken from the answer. The defendant properly preserved this point by filing exceptions pendente lite to this ruling, within the time required by law.
On the trial of the case, the court overruled the plea of receivership. No exceptions pendente lite were filed. The plaintiff amended his prayer by praying for interest from October 4, 1949, to the date of the judgment.
The case proceeded to trial, without the intervention of a jury, and resulted in a judgment for the plaintiff. The findings of fact included the finding that the note for $2600 with interest at 6% per annum from date was usurious, the borrower receiving only $2000, and the note being payable in 60 monthly instalments of $43.34 each with interest thereon at 6% per annum from date. The court also found that the plaintiff had already paid $563.42 on the note, and that the plaintiff was indebted to the defendant on several items of setoff in the total amount of $968.90. The court allowed the payment of $563.42 as credit against the note, leaving $1436.58 due, and ruled that the plaintiff was entitled to recover the $3950 bid in at the sale, less the $1436.58 balance on the loan and the $968.90 allowed as setoffs, such amount being $1544.42.
The defendant's motion for a new trial on the usual general grounds and two special grounds was overruled. To this judgment the defendant excepted.
1. In the statement of facts we did not set forth in detail the specific items of setoff claimed by the defendant, since the record shows that all of such items except that of $860 and that for State and county taxes for 1945, 1948, and 1949, in the total sum of $141.46, were allowed, the total of such setoffs being $968.90. The defendant filed exceptions pendente lite to the judgment disallowing these items, but in his brief insists only as to the alleged error in disallowing the item of $860. This amount is alleged to have been paid as follows: "Payment made to the Marshal, Civil Court of Fulton County, on May 15, 1950, in suit No. 198915, Civil Court of Fulton County, in a foreclosure action brought by American Service Co. against property conveyed by Ellis Ferrell to Mrs. Mary Caldwell by deed to secure debt which is attached hereto as Exhibit 1, the said foreclosure property being also included in the deed under power from Ellis Ferrell to Joel Lunsford dated October 5, 1949, and recorded in Deed Book No. 2446 at page 437, a copy of said deed under power from Ellis Ferrell to Joel Lunsford being attached hereto marked Defendant's Exhibit 2 . . $860." The suit was brought on March 6, 1950, and no citation of authority is necessary in holding that this setoff, since it had not accrued to the defendant at the time of the filing of the suit, was properly stricken on demurrer.
2. The plaintiff in error contends that the general grounds of the motion for a new trial were erroneously overruled by the court, for the reasons: (a) the disallowance of the setoff of $860 was contrary to law and the principles of justice; (b) the present action for money had and received was not maintainable, but should have been one on a specialty, the security deed here involved; and (c) the action of assumpsit is not maintainable where there is an express contract for repayment of the money sought in the action for money had and received. The objection (a) is not one that could be argued under the general grounds. The disallowance of the setoff of $860 arose in response to a ruling on the plaintiff's demurrers and, as ruled in division 1, supra, the setoff was properly stricken. The objections (b) and (c) are also without merit. To the original petition the defendant filed a general demurrer and this was overruled. It was thereby adjudicated that the plaintiff was entitled to proceed with his action as laid. Furthermore, the objection here is made for the first time in a brief filed in this court, and comes too late.
If we are in error in our understanding that the plaintiff in error means to restrict his objections to (a), (b), and (c), and really intends top insist, for any reason that might be found by this court, that the general grounds were erroneously overruled, because the judgment of the court without the aid of a jury was contrary to the evidence, without evidence to support it, and contrary to the law and principles of justice and equity, the following must be said: As shown in the statement of facts, the $2600 note represented $2000 principal and $600 interest, and was usurious; and the plaintiff had already paid $563.42 on the note, and hence he owed only $1436.58. The property was sold for $3950, leaving on overplus of $2513.42. The court found that the defendant was entitled to a total setoff of $968.90, and this was authorized by the evidence. The objection of the plaintiff in error is only that he was also entitled to a setoff of $860, which, as we have shown above, was properly stricken on demurrer. The court correctly found that the net amount was the difference between $2513.42 and $968.90, and entered judgment for this amount plus interest to the date of judgment and future interest at 7% per annum. It therefore follows that the general grounds of the motion for a new trial are without merit.
3. The first special ground assigns error on the overruling of a plea of the defendant that a receivership of the plaintiff was pending in Fulton Superior Court, and hence the plaintiff has no right to bring an action, but any claim on the plaintiff should be brought by the receiver. Before this court can consider a trial court's ruling on a plea, an exception must be properly preserved and presented by one of two methods: (1) exceptions pendente lite to such judgment may be filed within twenty days and error assigned thereon when the case is ultimately brought here by bill of exceptions; or (2) if the case is brought here by bill of exceptions to a final judgment, or to a judgment which would have been final if rendered as the complaining party contends it should have been, and if such bill of exceptions is tendered to the trial judge within twenty days of the date of the ruling on the plea, an exception to the ruling and as assignment of error thereon may be included in such main bill of exceptions. Turner v. Barber, 131 Ga. 444, 445 (6) ( 62 S.E. 587); Carter v. State, 77 Ga. App. 60 (1) ( 47 S.E.2d 815). Since rulings on the pleadings can not be excepted to in a motion for a new trial ( Fechtel v. Chastain, 79 Ga. App. 517, 54 S.E.2d, 459), the overruling of a plea can not be a ground of a motion for a new trial ( Turner v. Spell Live Stock Co., 31 Ga. App. 343 (1), 120 S.E. 786; Butler v. Georgia Agricultural Credit Corp., 37 Ga. App. 390 (2), 140 S.E. 426), and the question of whether or not the court erred in overruling the plea is not properly presented to this court and will not be considered. Henley v. Colonial Stages South, 56 Ga. App. 722, 725 ( 193 S.E. 905); Oliver v. Wayne, 58 Ga. App. 787, 789 ( 199 S.E. 841).
4. Special ground 2 assigns error on the court's allowing a witness to testify — in connection with a note (plaintiff's Exhibit 1) in which the plaintiff promised to pay $2600 with interest — that the plaintiff actually received only $2000. The court allowed the testimony over the objection that it would be parol evidence to very a written contract. "It is a well-settled rule that, in the absence of fraud, accident, or mistake, parol evidence is ordinarily inadmissible to very the terms of a written contract. This, however, is not true where the contract out of which the suit arises in tainted with usury, and that fact, is sought to be shown." Flood v. Empire Investment Co., 35 Ga. App. 266, 269 ( 133 S.E. 60). In his brief, counsel for the defendant argues that this evidence was not admissible under the pleadings. Even if this contention has merit. It will not be considered, because a ruling by the trial court was not invoked on this question and was not given. Norton v. State, 73 Ga. App. 307, 308 ( 36 S.E.2d 120).
Judgment affirmed. Sutton, C. J., and Felton, J., concur.