Thornton v. Martin , 116 Ga. 115 ( 1902 )

Simmons, O. J.

(after stating the facts as above.) 1. That the petition set forth a cause of action, at least as against a general demurrer, we think evident from the synopsis of it given above. Under the allegations made, Martin had acquired a good title to the stock in controversy, and had a right to have it transferred on the books of the company. The contention that there was a misjoinder of parties defendant was also without merit. Thornton claimed to own the stock, and it was necessary to make him a party in order to settle the question of title; and the company was an equally necessary party, in order that the plaintiff might get full relief and have the transfer made on the books of the company. 1 Morawetz, Priv. Corp..(2d ed.) § 221. Nor could the plaintiff be forced, in order to remedy his wrongs, to bring two different and independent actions. While the relief prayed was against two different defendants, the causes of action against them were not separate and distinct, but related to the same, subject-matter and were based upon the same transaction. There was, therefore, no misjoinder either of parties or of causes of action.

2. We can see no force in the contention that the sale under the power given in the note should have been made in another county merely because the latter was the county in. which was located the corporation whose stock was sold. Section 5431 of the Civil Code, providing for the levy of executions upon railroad stock in the counties through which the railroad passes, is in no sense applicable to the present case. The note did not specify where the sale should be made, but, inasmuch as it was dated and made payable in Muscogee county and the maker resided in that county, we think the parties contemplated that the sale should be made in that county. It was not a sale under judicial process or execution, hut a sale under a written power of sale; and the intention of the parties, as shown by the writing, must govern- as to this matter. The sale took place during the usual hours. and at the place at which the sheriff of Muscogee county usually made his sales. It was made at public outcry and on a regular sale day.

3. Counsel for the plaintiffs in error argued, in support of the defendants’ other demurrer, that, “ the time of payment of the note having been extended to an indefinite period and no fixed time of payment, a demand for payment should have heen made before a sale.” The petition does not show that there had ever been any extension of the note, and nothing more appears than that the sale was delayed until more than two years after the maturity of the note. Indulgence of the payee was not an extension of the note, and the same was due at a fixed and definite time. Even were this not true, the maker had waived both demand of payment (18 Am. & Eng. Enc. L. (1st ed.) 669 [3]) and notice of the time and place of sale.

4. Defendants offered in evidence testimony to the effect that in the latter part of July, 1898, Brannon told Thornton he would soon have to settle with one of the beneficiaries of the estate he represented, and wanted Thornton to pay him; and that Thornton had expressed a willingness to do so. This evidence was objected to as irrelevant, and the objection was sustained. The defendants excepted. This evidence was properly excluded. Brannon had full power and authority to sell the railroad stock at any time-after the maturity of the note, without notice to the maker of the note. This ' evidence did not show any definite or binding extension of the note, or any agreement either to postpone the sale until further notice, or to give the maker notice before making the sale. It was insufficient to show any of these things, and was properly ruled out as irrelevant.

5. Error is assigned on the admission in evidence, after the introduction of the note of Thornton, of an entry indorsed thereon, signed by Brannon as administrator, reciting that he had, by virtue" of the power vested in him by the note, regularly sold the stock at public sale to Martin, the highest bidder, and entering a credit of $1,000 on the note. The objection to this evidence was that there was no proof of its execution. The same objection was made to the introduction in evidence of the written transfer of the specific shares of stock by Brannon, administrator, to Martin. This transfer recited that Brannon was acting under the power given him by Thornton, and transferred the stock to Martin. It also authorized the secretary of the railroad company to transfer the stock on the books of the company. Copies of these papers were attached as exhibits to the petition, and the transfer under the sale was not expressly denied by the defendants, but the validity of the sale was attacked and Thornton sought to have it annulled. At the same time, the defendants did not admit the sale or the transfer thereunder. They alleged,that they did not know; but that if there had been’ such a pretended sale, it was invalid and should be set aside. Counsel for the defendant in error sought to justify the ruling of the court on the grounds that there was no issue of Tact as to the execution of these papers, they being virtually admitted in the pleadings of the defendants; that one of these papers was admissible as being the. foundation of the plaintiff’s suit, and that the other was admissible without proof of its execution, under the Civil Code, §. 5.244, as being only incidentally or collaterally material to the case. '.'We. think that these contentions are not sound. Whether or,not there had'been.a sale, and whether or not these papers had been- executed by Brannon and delivered ito Martin, were not facts which necessarily came within the knowledgé of Thornton or of the railroad company. They -might very well have been entirely withoút reliable information as to these matters,- The»defendants’ pleadings did,not expressly deny the sale or the execution of the papers ' attached to the petition as exhibits ; but it is also true that .they did'not .expressly admit'either. The papers could, not, therefore, be admissible as having been admitted to be true, - Both of the.papers were material to the case, one of them to show title in the petitioner and authprity to the company to m^ke the. transfer on its books, and the other to show the fact of sale and that there had been a sale to the petitioner and a credit on the note;. We are fully aware of the decisions in Strange v. Barrow, 65 Ga. 23, Couch v. Couch, Ibid. 748, and Hays v. Hamilton, 68 Ga. 833. But they are not here applicable. In each of those cases the suit was upon a written contract embodied in or attached to the petitiqn, that contract was alleged, to have been .executed by the defendant and was declared on as the foundation of the suit, and there was no denial of its execution. In such a case the contract is admissible without proof of its execution. In the present cáse the transfers of .the stock to Martin by Brannon were material and necessary to the plaintiff’s case, and were attached as exhibits to the petition, -but the suit was not against the person who executed them. They are not the foundation of the suit in the sense that they are declared on and a recovery sought because of their breach. For these reasons we think they come within the general rule that papers are inadmissible in evidence until their execution is proved. Without proof of their execution they were inadmissible. As well admit in evidence, in the trial of a suit for land, all of the deeds in the chain of title set up in the declaration, merely because they are essential to the plaintiff’s case.and. their, execution has not been either admitted or denied by the .defendant. Without this evidence the case against the defendants'was not made out, and, as the evidence should have been éxeluded, the judgment below must be reversed.

We have considered the motion to dismiss the writ of error in this case and have reached ’ the conclusion that it was without merit. It was predicated upon the failure to serve the bill of exceptions upon Martin in his representative capacity as executor of Brannon’s estate. . In that capacity he was a mere formal party and had ño interest whatever in the result of the'litigation.

Judgment reversed.

All the Justices concurring, except lewis, J., absent.