King & Co. v. Cantrell , 4 Ga. App. 263 ( 1908 )

Powell, J.

In June, 1905, Cantrell obtained .from King & Co. $45; and in September, 1905, obtained a like sum. In each case he executed his note, due 90 days after date, for $60; also an order on Lester Book & Stationery Company, directing it to pay King & Co. $5 on each Saturday night, out of his wages to be earned, until twelve such payments were made. The notes were paid in full, and Cantrell brought this suit to recover back, as usury, the difference between the lawful interest on the $90 and the amount received by King & Co. King & Co. practically admitted these facts,' but set up that they did not make a loan, — that they bought the wages to be due Cantrell by Lester Book & Stationery Company. They swore that there was an agreement that there was to be no loan of the money, and only a purchase of his earnings. The jury in the justice’s court found for the defendant. The plaintiff brought certiorari. The certiorari bond was not under seal, and the defendants moved to dismiss the proceeding; the judge overruled the motion, and to this the first exception in the record is taken. Upon considering the petition and the answer, the judge decided that- no issue of fact was presented, and rendered final judgment in favor of the plaintiff, for the full amount sued for. To this judgment also exception is taken.

1. A certiorari bond need not be under seal. Political Code, §4, par. 7. The court therefore did not err in overruling the motion to dismiss.

2. The contention of the plaintiffs in error, that they were entitled to go to the jury on the question whether the transaction between them and Cantrell was a loan of money or a purchase of wages, is not well founded. The papers speak for themselves; and they are not to be Contradicted by parol testimony, in the absence of fraud, accident, or mistake. Indeed, under the 17th section of the act of August 15, 1904 (Georgia Laws 1904, p. 84), an assignment of unearned wages is void. Cantrell’s giving of his promissory notes for the money is wholly contradictory of the contention that he merely sold wages and borrowed nothing. But one lawful result was possible, and that was effectuated by the judgment rendered. Judgment affirmed.