Opinion
44204.
SUBMITTED JANUARY 9, 1969.
DECIDED JANUARY 29, 1969. REHEARING DENIED FEBRUARY 14, 1969.
Complaint. Fulton Civil Court. Before Judge Camp.
Richard D. Flexner, Haas, Holland, Freeman, Levison Gibert, for appellant.
W. M. Mathews, Jr., for appellee.
The pleadings and the admissible evidence submitted in support of and in opposition to the motion for summary judgment authorized a grant of the motion and it was error to deny it.
SUBMITTED JANUARY 9, 1969 — DECIDED JANUARY 29, 1969 — REHEARING DENIED FEBRUARY 14, 1969.
Joe Jones Trucking Company, Inc. leased from Fred Mason certain equipment under a written contract whereby monthly rentals of $1,500 were to be paid. On November 4, 1967, the company was two months in arrears with the rental payments and Mason informed its president, Jesse B. Blayton, Sr., that unless the arrearages were paid immediately suit would be instituted for the collection thereof. Blayton asked Mason to withhold the bringing of suit until November 6, 1967, assuring Mason that the company would then be able to make the payment. Mason was unwilling, without more, to defer the bringing of suit, and Blayton then issued his personal check for $3,000 to Mason to cover the arrearage, which Mason agreed to hold and to forbear the bringing of suit until November 6. When Joe Jones Trucking Company failed to pay the rentals on November 6, Mason deposited Blayton's check, but Blayton had stopped payment on it and the check was returned by the bank. Thereupon Mason brought suit against Blayton on the check. Blayton answered, setting up as his defense that the check had been issued on the condition that it was to be void if Joe Jones Company did not pay the arrearages on November 6, 1967, that the obligation for which the check was given was that of Joe Jones Trucking Company, defendant not having incurred any obligation of any kind to plaintiff, and that the check was without consideration.
Plaintiff moved for summary judgment, attaching his affidavit setting out the facts as to the lease, the arrearage in rentals, the demand therefor, the threat to sue, the request of Blayton, the company's president, for forbearance until November 6, and his issuance of the check sued on, to be used if Joe Jones Company did not pay the arrearages by November 6, and its failure to do so, the deposit of the check, Blayton's stopping of payment and its return by the bank.
Defendant filed his response, admitting the execution and delivery of the check and the refusal of the bank to honor it because of his stop payment order, but asserted that the check was issued with the understanding that when Joe Jones Trucking Company accumulated sufficient money in its account to pay the arrearages he would issue and send to Mason its check for the $3,000 and thereupon Mason was to return Blayton's personal check, but that if Joe Jones Company did not have $3,000 in its account on November 6, 1967, he, Blayton, would stop payment on his personal check.
The motion for summary judgment was denied and plaintiff appeals, the trial judge having certified the judgment for review.
We reverse. A check executed and delivered is a contract in writing by which the drawer contracts with the payee that the bank will pay to the latter or his order the amount designated, on presentation. Haynes v. Wesley, 112 Ga. 668 (2) ( 37 S.E. 990, 81 ASR 72). Code Ann. § 109A-3-104. "[T]here is little difference between a check and a demand note. Both are acknowledgments of indebtedness and an unconditional promise to pay." Diemar Kirk Co. v. Smart Styles, Inc., 261 N.C. 156, 159 ( 134 S.E.2d 134). It imports a consideration. Deal v. Atlantic C. L. R. Co., 225 Ala. 533, 538 (144 S 81, 86 ALR 455). "It is elemental that a check is a written contract to be performed at the place where is located the banking house or place of business of the person on whom it is drawn." Permenter v. Bank of Green Cove Springs, (Fla.) 136 So.2d 377, 380. "The drawer of a check has the right, at any time prior to acceptance by the bank, to stop its payment. [Citations.] However, his revocation of the bank's authority to pay the check does not discharge his liability to the payee or holder. 10 CJS 455, 456, Bills Notes, § 35. The situation becomes the same as if the check had been dishonored and notice thereof given to the drawer. Flynn v. Currie, 130 Me. 461 ( 157 A 310). Annot. 14 ALR 562." Diemar Kirk Co. v. Smart Styles, Inc., 261 N.C. 156, 159, supra.
Defendant's contention that there was no contract in writing, as required by the Statute of Frauds, to bind him to answer for the debt of Joe Jones Trucking Company is without merit. His check was sufficient.
The defendant, admitting the execution and delivery of the check, asserted in his answer that it was "without consideration moving from plaintiff to defendant." It is not necessary that the consideration move from the payee to the drawer of a check. It is sufficient if there is some benefit or inconvenience to the creditor or payee. Nalley Land Invest. Co. v. Merchants Planters Bank, 187 Ga. 142, 145 ( 199 S.E. 815). "If there be a valid consideration for the promise, it matters not from whom it moves; the promisee may sustain his action, though a stranger to the consideration." Code § 20-306. It matters not from whom the consideration flows ( Archer v. Kelley, 194 Ga. 117, 125 ( 21 S.E.2d 51)), or that it may flow to some third party. Read v. Gould, 139 Ga. 499 (4a) ( 77 S.E. 642).
Forbearance to sue on an obligation that is due is a valid consideration sufficient to support a contract. Holsomback v. Caldwell, 218 Ga. 393, 395 ( 128 S.E.2d 47); Langford v. Milwaukee Ins. Co., 101 Ga. App. 92, 95 ( 113 S.E.2d 165); Greenberg v. J. C. Bradford Co., 112 Ga. App. 746 ( 146 S.E.2d 119). The agreement to forbear must be for a specific period of time ( Ballentine Motors of Ga. v. Nimmons, 93 Ga. App. 708 ( 92 S.E.2d 714)), but the agreement here to forbear until November 6, 1967, supplied this requisite. Even one day has been held sufficient. Adolph Ramish, Inc. v. Woodruff, 2 Cal.2d 190 ( 40 P.2d 509, 96 ALR 1146).
In his counter-affidavit the defendant concedes that on November 4, 1967, the sum of $3,000 in rentals was past due by Joe Jones Trucking Company and that he issued and delivered his check to the plaintiff in that amount, which was to be held until November 6, 1967, at which time it was expected that Joe Jones Trucking Company would have accumulated sufficient funds to pay that sum and that it would then do so. Thus, there is an admission of forbearance during the time from November 4 to November 6, when plaintiff presented the check to the bank on which it was drawn, only to find that payment had been stopped thereon.
This admission is sufficient to negate the plea of failure of consideration.
Defendant also asserted that the check was delivered upon a condition that if Joe Jones Trucking Company did not pay the past due rentals on or before November 6, 1967, payment was to be stopped on the check and it would become ineffectual. This was an effort on his part by pleading to engraft by parol a condition upon an unconditional contract to pay, which cannot be done. Lee v. Garland, 208 Ga. 251 ( 66 S.E.2d 223). And see Stapleton v. Monroe, 111 Ga. 848 ( 36 S.E. 428); Brewer v. Grogan, 116 Ga. 60 ( 42 S.E. 525). "The plea, if sustained, would alter and vary the terms of this written contract, so as to make its payment uncertain and dependent on the election of the maker at its maturity. Such could not be done, and parol evidence of such contract would not be admitted so to vary its terms." Johnson v. Cobb, 100 Ga. 139, 141 ( 28 S.E. 72). One who occupies the status of a surety cannot set up (or prove) a contemporaneous agreement to the effect that he was to remain surety for a few days only, when that condition does not appear as a part of the written contract. Mansfield v. Barber, 59 Ga. 851.
Nor can it be done by testimony or affidavit. Bullard v. Brewer, 118 Ga. 918 ( 45 S.E. 711). "[W]e know of no principle, nor has any decision been called to our attention, which supports the proposition that a written promise may be defeated by proof of an oral agreement not to enforce it. The decisions are directly to the contrary." Sasser v. McGovern, 11 Ga. App. 88, 89 ( 74 S.E. 797). "It was not competent for the defendant to show by parol evidence that notwithstanding this apparently unconditional promise to pay in the event the maker did not, the real agreement between the parties was that the indorsee would not look to the indorser for payment." Matthews Son v. Richards, 13 Ga. App. 412, 413 ( 79 S.E. 227). Consequently, this will not prevent the grant of a summary judgment where the pleading of the plaintiff and the uncontradicted admissible evidence submitted authorizes it. Camp v. Fulton County Medical Society, 219 Ga. 602 (1) ( 135 S.E.2d 277). The effort of the defendant to establish that although he obtained a forbearance from the plaintiff by the giving of his check for the amount of the past due rentals owing by Joe Jones Trucking Company, it was upon condition that, if Joe Jones did not pay, the defendant's check would not be honored, is impermissible and must fail.
The function of a summary judgment being analogous to that of a motion for a directed verdict ( McCarty v. National Life c. Ins. Co., 107 Ga. App. 178 (1) ( 129 S.E.2d 408)), it appears that under the pleadings and the admissible evidence submitted plaintiff was entitled to have his motion granted. Cf. Gould v. Small, 121 Ga. 747 ( 49 S.E. 723).
Judgment reversed. Bell, P. J., and Deen, J., concur.