Opinion
32757.
DECIDED JANUARY 6, 1950.
Complaint; from Metter City Court — Judge Kimbrough. August 20, 1949.
Kirkland Lane, for plaintiff.
Homer S. Durden Jr., for defendant.
An action on a check, originally defective because it did not allege presentment, dishonor and notice, or waiver thereof, is amendable so as to show a waiver of presentment, etc.
DECIDED JANUARY 6, 1950.
R. F. Lanier sued John Waddell in the City Court of Metter. The petition alleged that the defendant was indebted to the plaintiff upon the balance due on a certain check executed by the defendant and payable to the plaintiff and that the defendant failed and refused to pay said balance due on such check though requested to do so many times. A copy of the check, "with all credits thereon," was attached and made a part of the petition. The attached copy of said check was as follows: on the front "Metter, Georgia, 4-12, 1947, Metter Banking Company, Pay to the Order of R. F. Lanier $524.00, Five Hundred 24 Dollars, John Waddell"; and on the back, "By sale of 2 yearlings on halves, $47.93 . . . $23.96, Int. on or cr. at 7% from Oct. 17, 1949 (sic) 3.24, By cash 9/1/48 50.00, Int. on credits 7% from 9/1/48 3.16." To such petition the defendant filed a general demurrer on the ground that no cause of action was stated. The trial court sustained the demurrer. The plaintiff filed the following amendment: "1st. That it was agreed and understood by and between John Waddell and R. F. Lanier, the parties to this suit, that after they had had a full and complete settlement and it developed that John Waddell owed R. F. Lanier $524.00 on April 12, 1947 and the said R. F. Lanier was going to take a note from the defendant John Waddell, but neither party had a note; then it was agreed between them for the defendant John Waddell to give to R. F. Lanier a check for the amount due, which was $524.00, and he did give R. F. Lanier a check on April 12, 1947, payable to R. F. Lanier for $524.00 and signed by John Waddell, said check given on the Metter Banking Company. 2nd. The plaintiff shows that after it developed that they had no note plaintiff agreed to accept a check for the amount due him by John Waddell; that it was further agreed that the check was not to be presented to the bank for payment, since John Waddell told the plaintiff at the time he gave the check that he had no money in the bank and that the plaintiff was to hold the check until the defendant John Waddell could pay the same, and credits on this check is evidence of this fact. 3rd. The plaintiff shows that he did not present the check to the drawee for payment and dishonor and that no notice of dishonor was given to the drawer by the payee, as required by the negotiable instruments law, since it was not necessary after having had the agreement as stated herein. 4th. The plaintiff in this case shows that the presentment of his check for payment was expressly waived by agreement between the parties to this suit before the execution of the check, as aforesaid, and that under the law and agreement, the plaintiff was not under any obligation to give to the drawer any notice, for the reason that the drawer had no right to expect or require that the drawee or acceptor would honor the instrument for the reason that the defendant John Waddell told the plaintiff at the time he executed the check and signed the same, that he had no money in the bank and that the check was to be held as agreed upon." The judge then entered the following order: "The within amendment having been tendered subsequently to the hearing and argument having been tendered subsequently to the hearing and argument on the defendant's general demurrer, plaintiff, however orally offering to amend at the time, and the sustaining thereof, and the court being satisfied, even after considering the amendment, the same fails to meet the objections raised by the demurrer, the amendment is hereby disallowed." The plaintiff excepts.
The plaintiff, having failed to allege presentment, dishonor and notice in his original petition, sought by amendment to show waiver of these elements by the defendant. Where one sues the drawer of a bill of exchange and fails to allege presentment, refusal to pay, dishonor and notice, an amendment setting forth these facts is allowable. Jones v. Warren, 60 Ga. 360. The same rule applies where one suing the drawer of a check, on such check fails to allege waiver of presentment, dishonor and notice, and seeks to establish such facts by amendment. "Presentment for payment is dispensed with: . . (3) By waiver of presentment, expressed or implied." Code, § 14-713. "Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied." Code, § 14-821. "Presentment and notice of dishonor of a negotiable instrument may be dispensed with or waived under certain conditions, under the provisions of the negotiable instruments law of this State." Murray v. Anderson, 73 Ga. App. 771 ( 38 S.E.2d 131). Also see Biggers v. Bank of Ringgold, 38 Ga. App. 521 ( 144 S.E. 397). The defendant in error contends that the plaintiff by his amendment sought to change the action from one originally based on a check to one based upon an open account, and that the plaintiff by his amendment sought to vary the terms of a written agreement or instrument by parol. These contentions are without merit. While it is true that the plaintiff went into the surrounding circumstances of the transaction, it is evident from the amendment that he did so not to vary the terms of the instrument but to show that the defendant had waived presentment, dishonor and notice. The plaintiff in his original petition relied upon the instrument as being a check and continued to do so in his amendment, setting up allegations of waiver on the part of the defendant.
The amendment cured the defect in the original petition sufficiently to withstand a general demurrer.
Under the ruling stated above the amendment should have been allowed and the trial court erred in sustaining the demurrer and in refusing to allow the amendment.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.