Saul v. Southern Seating & Cabinet Co. , 1909 Ga. App. LEXIS 497 ( 1909 )

Powell, J.

(After stating the foregoing facts.) Since the notes are under seal, and since they do not on their faces disclose any principal for whom the signers could be construed to be acting as agents, they are to be taken as the individaul .act and deed .of Saul and Wolfe, and the words “pres.” and “secy.” following their respective names will be looked upon as mere descriptio personas. May we say, in passing, that the principle of construing as mere descriptio personas such words as “agent,” “administrator,” “president,” “secretary,” “trustee,” “director,” “manager,” etc., when appended to signatures to instruments not plainly disclosing another as principal, and of refusing to hear parol as to the true capacity in which the signers acted, is a rule which long since has outlived the reason back of it ? There was a day when but few men were able to identify themselves as the makers of contracts by the handwriting of the signatures — a day also when surnames, in the manner to which we are now accustomed, were a rarity, and John, the smith (from whom the many Smiths have since descended), was spoken of in the community and was described in contracts as "John the smith/’ or as “John Smith/’ to distinguish him from John who ran the mill (ancestor of the Miller family), and was described in his contracts as “John the Miller,” or John Miller, or from John who lived in the Glen, and was described as “John Glen.” In those days, when one of the Johns added the words, “agent,” “administrator,” “overseer,” “trustee,” “rector,” or some similar designation, after his name in a contract, there was a reason for the inference that he himself was personally contracting, and that the words appended were intended to describe him and to identify him — 'just as much so as there was for inferring that John who signed his name “John Williamson” intended to bind himself, and not his father William, whose name he also used in the signature as descriptio personas. But that day has passed. The reason has expired, but the rule persists through juridic pertinacity. If we had the power, we would hasten the day when the courts would relinquish this senseless adherence to precedents which have lost their point, but we have no authority in that direction. Under the constitutional organization of this court, our task is to find the old precedents and to follow them; we are to blaze no new trail, so long as there is an old one.

Construing the notes as the individual undertaking of Saul and Wolfe, we find that their plea is well founded. The notes as to them are without consideration. Though they are under seal and though the law presumes a consideration, a plea that they were in fact based upon no consideration is a good defense. Lacey v. Hutchinson, 5 Ga. App. 865 (64 S. E. 105). According to the plea, the indebtedness represented by the notes was solely the indebtedness of a corporation, the Congregation of Beth Israel; at the time the notes were given it was a pre-existing indebtedness; no new detriment to the promisee, no new benefit to the promisor or the corporation occurred at the time, so as to create a consideration for the giving of the notes. Under all the .authorities, the contract between the plaintiff and the defendants was nudum pactum. Davis v. Tift, 70 Ga. 53 (2), 56, and cit; Russell v. Smith, 97 Ga. 287 (23 S. E. 5); Gay v. Mott, 43 Ga. 252; Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Jones v. Shorter, 1 Ga. 294 (44 Am. D. 649); Bailey v. Devine, 123 Ga. 656 (51 S. E. 603, 107 Am. St. R. 153). The Congregation of Beth Israel remained bound on its original undertaking, and Saul and Wolfe did not become bound by theirs, since there was no agreement that one debtor should bé substituted for the other. Whelan v. Edwards, 29 Ga. 315. If there had been an extension of time, not originally promised, or a reduction of interest, or a'release of the original debtor, or any of these things which the law is wont to treat as consideration, the case would be different; but according to the plea, the case is simply one where these two, without any new consideration whatever, attempted to bind themselves to pay the pre-existing debt of the congregation. The fact that Saul and Wolfe agreed to pay attornej^s fees, when the congregation had not so promised, was of course no detriment to the promisee and no benefit to themselves — hence no consideration for the notes.

The notes on their faces say that the consideration is certain rmintelligibly-described property. The plea denies that the makers ever received this consideration. This alone would be a perfect defense, if it were not true that recitals of consideration, especially when ambiguously expressed, are open to inqMry; hence it was necessary that the plea should, as it did, allege that there was no other consideration. Since the recitals of consideration set out in the notes themselves are unintelligible without parol assistance, the takers of the notes can not complain when the makers show that there was no consideration at all. Barco v. Taylor, 5 Ga. App. 372 (63 S. E. 224). However, we do not deem it necessary to put the case on this special principle, but rest it on the broader doctrine that lack of consideration is a good defense to every contract, under seal or not under seal, negotiable or not negotiable,, so long .as it is in the hands of the original taker.

Judgment reversed'.