Beazley v. Ga. R. Bank &C. Co.

144 Ga. App. 215 (1977)

241 S.E.2d 39

BEAZLEY et al. v. GEORGIA RAILROAD BANK & TRUST COMPANY.

54675.

Court of Appeals of Georgia.

Submitted October 4, 1977.

Decided December 1, 1977.

Bobby G. Beazley, for appellants.

Nixon, Yow, Waller & Capers, O. Palmour Hollis, *217 Roy D. Tritt, for appellee.

BELL, Chief Judge.

This is a suit to recover the amount due on a promissory note plus interest and attorney fees. *216 Summary judgment was granted to the plaintiff bank and defendants appeal. Held:

1. Plaintiff's request for admissions went unanswered and, accordingly, the following stand admitted: jurisdiction and venue; the genuineness of the note; the defendants' signatures thereon; the receipt of the ten-day letter demanding payment; and, the failure to pay the note. These admissions provided a prima facie right to judgment for plaintiff. Freezamatic Corp. v. Brigadier Industries Corp., 125 Ga. App. 767 (189 SE2d 108).

2. Defendants raised the defenses of failure of consideration, discharge in bankruptcy and usury. An examination of them along with the undisputed related facts reveals the absence of any material issue of fact requiring trial.

a. Failure of Consideration. The note sued on was a renewal instrument. No consideration is necessary for an instrument given in payment of an antecedent obligation of any kind. General Tire &c. Co. v. Solomon, 124 Ga. App. 308 (183 SE2d 573).

b. Discharge in Bankruptcy. While the record indicates that the original note was discharged in bankruptcy, the note on which this suit is based was a reaffirmation of the earlier debt and was executed after the bankruptcy. A reaffirmation of a debt discharged in bankruptcy again makes the debt collectible. Monroe v. Martin, 137 Ga. 262 (73 SE 341).

c. Usury. The note was due 91 days after execution and the interest was calculated on a 360-day year, causing a slight excess above the legal rate of 9% per annum to 9.13%. This was authorized and does not constitute usury under the holding in Patton v. Bank of LaFayette, 124 Ga. 965 (4) (53 SE 664).

Judgment affirmed. McMurray and Smith, JJ., concur.