text:
    18414.
    Walton County Bank et al. v. Stanton et al.

   Stephens, J.

1. A contract entered into by the stockholders of a bank in contemplation of its merger with another bank and as a condition precedent to the merger, by which the stockholders agreed that “if at the final settlement of the notes of” named persons-who owed an indebtedness evidenced by notes to the first bank, “there should be any loss sustained” by that “bank or the consolidated or merger bank,” the stockholders would pay this loss, was a contract of indemnity, obligating them for any loss sustained upon a final settlement of that indebtedness, notwithstanding that in the meantime the existing notes may have been renewed from time to time, provided the bank in renewing the notes acted in good faith and in the interest of the bank, and provided that any loss at the final settlement, caused by a delay in foreclosing or in making the settlement, due to a renewal or extension of time of payment, was not caused by negligence or lack of ordinary care by the authorities of the bank in handling the transaction. The liability of the obligors under this contract was not terminated by reason of renewal of the notes without notice to the obligors or without- their consent.

2. The failure of a signatory party to a contract to become bound by reason of legal inability to make a contract, — -as the _ inability of a partner executing the contract in behalf of the partnership to bind the partnership, or some infirmity in such person’s execution of the contract, — does not amount to a release of the person from liability, and therefore can not, as a release of one jointly bound, operate as a release to the co-obligors.

3. A settlement of the indebtedness represented by the notes, by an acceptance of property by the bank from the makers in payment of the indebtedness, amounts to a settlement and discharge of the indebtedness, and to a release of the obligors under the contract of indemnity. This is true notwithstanding some of the obligors may have been members of the board of directors, or consented to the settlement, provided, in so doing they committed no fraud on the bank. If the settlement was made bona fide and the bank received full value in payment of the indebtedness, there was no fraud as against the bank upon the part of the directors consenting thereto, who were parties to the contract of indemnity, and they therefore, under such circumstances, would not be estopped from setting up the settlement as a release of their liability under the contract of indemnity. Ruffner v. Sophie Mae Gandy Corporation, 35 Ga. App. 114 (4) (132 S. E. 396).

4. If, however, the property received by the bank in settlement of the indebtedness represented by the notes was not reasonably worth the amount of the indebtedness, its acceptance by the officers of the bank in full settlement of the indebtedness, if not done bona fide and in the interest of the bank, amounted to a fraud upon the bank; and the guarantors upon the contract of indemnity, who were directors of the bank, unless they were not responsible for the contract of settlement, would be estopped from setting up the settlement in discharge of their obligations on the contract of indemnity. See article 19, section 11 of the banking act approved August 16, 1919 (Ga. L. 1919, pp. 135, 196).

5. The alleged settlement, even if a fraud as to the guarantors who were at the time directors of the bank, was nevertheless good as to the guarantors who were not directors and who in no way participated in the transaction. The latter could set up the settlement in discharge of their obligation under the contract by which they guaranteed the debt which had been settled,

6. Where, by virtue of the alleged agreement of settlement between the bank and the makers of the notes, the bank accepted certain property in payment of the indebtedness, and at the same time, and as part of the consideration, agreed with the makers of the notes to resell the property to them for a sum equal to the indebtedness represented by the notes, and afterwards did sell the property to them, retaining title thereto and taking from them new notes in amounts representing the amount of the indebtedness represented by the original notes, the inference is authorized that this transaction did not constitute a cancellation or settlement of the original indebtedness, but amounted only to an extension of the time of payment of the original indebtedness, with the property as security for its payment.

7. Where, by the by-laws of a banking corporation, the board of directors of the corporation have the management and control of its business, the authority of the president and cashier of the bank to make contracts of settlement for indebtedness due to the bank and to agree to the extension of time to the debtors of the bank, is the authority of the board of directors. Where the president and cashier, acting for and in behalf of the bank, negligently receives and accepts, in settlement of an indebtedness to it, property of a less value than the indebtedness, or negligently causes a loss to the bank by failure to foreclose or realize on property pledged to it as security for the indebtedness, by consenting to a renewal of the notes extending the indebtedness, and thereby extending the time for the payment of the indebtedness, the members of the board of directors, who have on their own account guaranteed the bank against loss upon the indebtedness, can not, in a suit against them by the bank upon their contract of guaranty, defend by setting up any failure of duty or any negligence on the part of the bank, through its president and cashier, as respects the alleged settlement or renewal of the indebtedness by which the bank suffered loss, unless the directors can show that the authority of the president and cashier to act in the matter, as respects the indebtedness guaranteed by the individual directors, was conferred upon the president and cashier by action of the board of directors in which the guaranteeing directors themselves did not participate. See, in this connection, Swindell v. Bainbridge State Bank, 3 Ga. App. 364, 370 (60 S. E. 13).

8. Where the security pledged for payment of the notes consisted of lands and farm equipment, which deteriorated in value, and this fact was known to the bank when renewing the notes, a renewal of the notes and a failure of the bank to foreclose and realize upon the collateral without delay is evidence of negligence upon the part of the bank, causing a loss in the final settlement of the indebtedness represented by the notes, and the amount of loss in the settlement of the indebtedness sustained by the bank as a result of this negligence would be chargeable against the bank, and not against the obligors on the contract of indemnity, unless they, by reason of being directors of the bank, be regarded as consenting to the acts of the officers which caused the loss.

9. This being a suit by the superintendent of banks of this State, in behalf of the merger bank which he had taken over for liquidation, to recover upon the contract of indemnity against the signatory parties thereto for the loss alleged to have been sustained upon the final settlement of the indebtedness represented by the notes, wherein the defendants pleaded a settlement of the indebtedness represented by the notes by an acceptance by the merger bank of property from the makers of the note's, and also pleaded that the loss, if there was any, sustained upon a final settlement of the indebtedness represented by the notes, was occasioned by the negligence of the merger bank in renewing the indebtedness in the face of a decline in the value of the securities, and by delay in foreclosing and realizing upon the securities, and the evidence authorizing an inference that, at the time of the alleged settlement of the indebtedness by the bank’s taking over in settlement thereof certain property from the makers of the notes, the property was not worth the amount of the indebtedness, and that the bank was negligent in renewing the indebtedness represented by the notes, and in deferring a foreclosure upon the pledged property, and the evidence further authorizing the inference that certain of the defendants, who were signatory parties to the contract sued on, were directors of the bank, and, as such, authorized or acquiesced in the acts of the officers of the bank respecting the indebtedness represented by the notes, the court erred in charging the jury that if any loss was sustained by the plaintiff bank on account of the notes guaranteed by the contract sued on, and if this loss was due to negligence of the officers and agents of the plaintiff bank, there could be no recovery. The court also erred in failing to charge, on timely written request of the plaintiff, not covered by the general charge, as follows: “If it appears from the evidence that any of the defendants were directors of the Walton County Bank, then they can not by any act of theirs, either in settling said Sigman notes or the renewal thereof, during the life of contract, defend against its terms or its provisions if, in point of fact, the Walton County Bank did sustain a loss. Directors of a bank act for it and not against it. They occupy a fiduciary relation to the bank. They can not act so as to cause it loss, if a loss was sustained. If they so act, they will not be released from the terms of this contract, even though other defendants, not directors, might be released, and you would have to find against them, even though you did not find against others who were not directors.”

10. Where at a conference between the superintendent of banks, representing the plaintiff, and attorneys representing the defendants, it was expressly agreed between them that nothing said or done in this conference should in any wise affect the liability of any of the defendants, or in any wise affect the right of the plaintiff to recover on the contract sued on, the court did not err, in the conduct of the trial in giving force and effect to this agreement. Evidence offered by the plaintiff, to the effect that it appeared at this conference that it was thought best by the defendants as stockholders in the plaintiff bank that a suit to foreclose upon the notes which they had guaranteed by the contract sued on should be deferred until a later date, was, 'when offered as evidence tending to relieve the plaintiff of the charge of negligence as respects'its efforts to realize upon the securities pledged for the payment of the notes, properly rejected.'

11. Since the value of the property alleged to have been taken over by the plaintiff bank in settlement of the notes was a material fact, and also since it was material whether or not the bank, in thus taking over the property, bona -fide considered it to be equal in value to the indebtedness represented by the notes, and was therefore not negligent, evidence tending to establish these facts was relevant and properly admitted.

Decided September 17, 1928.

Orrin Roberts, C. N. Davie, J. F. Kemp, for plaintiffs.

S. Eolderness, E. W. Roberts, M. W. Lewis, J. B. Gamble, R. E. Kimball, E. 0. Cox, for defendants.

12. Since the value of property may be established by the opinion of a witness as to its value, an objection to such an opinion, upon the ground that the value of the property can not be proved in this manner, is without merit.

13. Where the former president of the plaintiff bank testified that at the time when the property was taken over by the bank it was worth approximately the value of the indebtedness represented by the notes, the admission in evidence of extrajudicial statements, made by him on different occasions, that the property was worth the amount of this indebtedness, even if inadmissible, as being hearsay, was harmless.

14. Testimony of one of the directors of the bank that, from information which he had received from the president of the bank, the witness “understood” that the bank, after the transaction which it is alleged amounted to an acceptance of the property pledged in payment of the indebtedness, “had sold the property hack to” the makers of the notes, was testimony as to information received by the witness from the president of the plaintiff, and, not being admissible as an admission by the bank, was inadmissible, as being hearsay. This evidence tending to establish a material fact in issue, and in support of the verdict rendered for the defendant, viz. a sale of the pledged property to the bank by the makers of the notes, its admission in evidence was harmful to the plaintiff.

15. It is not within the scope of the business of a partnership which conducts a banking business to enter into contracts of security or indemnity, even in its own interest, — as by the execution of a contract of indemnity as above set out, — although the partnership may be a stockholder in the bank. One partner in the banking partnership therefore did not, by virtue of being a partner, have any implied authority to bind the partnership, or the other partners, to the contract of indemnity. The court therefore properly directed a verdict in favor of the Bank of Jersey and those partners therein who were not signatory parties to the contract of indemnity, viz. J. A. McGarity, J. L. McGarity, and Mrs. W. L. Blasingame, executrix.

16. By reason of the errors indicated in paragraphs 9 and 14 above, the By reason of the errors indicated in paragraphs 9 and 14 above, the court erred, prejudicially to the plaintiff, as respects the remaining defendants, and as to them the verdict found for the plaintiff will be set aside and a new trial granted.

Judgment affirmed in part and reversed in part.

Jenhins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    18468.
    Herrington v. Herrington et al.

   Stephens, J.

1. In a suit by an heir at law of an estate to recover of the defendants under authority of the Civil Code (1910), § 3886, for having, as executors de son tort, intermeddled with the personalty belonging to the estate and converted it to their own use, the plaintiff’s right to recover can in no wise be affected by the fact that advancements had been made to him by the intestate in her lifetime, or by the fact that one of the defendants had performed services for the intestate. The court therefore erred, prejudicially to the plaintiff, in admitting, over objection, testimony to the effect that the plaintiff had, prior to the death of the intestate, received various articles of personal property from the intestate; and also so erred in admitting, over objection, testimony to the effect that one of the defendants had lived with the intestate during the latter’s lifetime and had performed valuable services for the intestate. The jury having found a verdict for the defendants, the court erred in not granting the plaintiff a new trial.

2. In a suit by an heir at law of an estate to recover of the defendants for having as executors de son tort intermeddled with the personalty belonging to the estate and converted it to their own use, where the plaintiff alleges that he and the two defendants, and another person, not a party to the suit, are brothers and sisters and heirs at law of the intestate, that after the death of the intestate it was agreed by all the heirs at law that the two defendants, who had lived at the home place with the intestate, who was their mother, should continue in possession of all the personalty belonging to the estate for and during the life of their father, and at the father’s death render to the heirs of the estate an accounting for the personalty, that the father has since died, and that the defendants have refused to render an accounting and have converted the personalty of the estate to their own use, and where the defendants, by plea deny the making of any such agreement as alleged by the plaintiff, and deny the allegations of the plaintiff’s petition and • allege that the personalty sued for was their individual property and had never been the property of the estate, and also plead the statute of limitations, and where, upon the trial, the evidence presents an issue as to the existence of the alleged agreement by which the defendants were to preserve the personalty belonging to the estate during the father’s lifetime, and the only evidence in support of the plea of the statute of limitations is the nonexistence of the alleged agreement by the defendants to preserve the property of the estate during the father’s lifetime, and where, because of the existence of such agreement, the suit is not barred by the statute of limitations, and there is no evidence that the defendants, otherwise than by the alleged agreement, committed any act or indulged in any conduct that induced the plaintiff to defer the filing of the suit until after the death of the father, which death occurred more than four years after the defendants took possession of the property, the evidence presents no issue as to any fraudulent conduct upon the part of the defendants in lulling the plaintiff into security and thereby inducing him to defer the institution of the suit. The trial judge, therefore, did not err, as contended in the plaintiff’s motion for a new trial, in failing to comply with certain requests to charge, made by the plaintiff, applicable to the issue of fraud.

Decided September 17, 1928.

F. A. Cantrell, J. M. Lang, for plaintiff.

J. G. B. Erwin, for defendants.

3. In view of the above rulings, which are controlling, and the fact that the case is to be tried again, upon another theory, it is unnecessary to pass upon the remaining assignments of error.

Judgment reversed.

Jenkins, P. J., and Bel], J-., concur.


text:
    18537.
    Ætna Insurance Company v. Waters et al.

   Stephens, J.

1. Where a person has authority from a fire insurance company to adjust the loss with the insured, it is apparently within the scope of the authority of the adjuster as agent for the insurance company, by promising to pay the loss, to waive the right of the insurance company to insist upon the filing of a proof of loss.

2. In a suit by the insured under a fire-insurance policy against the company to recover under the policy for a loss by fire, where the petition alleges a compliance with all the requirements of the policy, including the filing of the required proof of loss, the petition is amendable by alleging that the defendant had, by promising, through its duly authorized agent, to pay the loss, waived its right to insist upon a filing by the plaintiff of proof of loss. Where the petition was not so amended, but evidence of the promise to pay the loss made by the adjuster was admitted without objection by the defendant as being irrelevant and immaterial, the verdict afterwards found for the plaintiff will not be set aside upon the ground that, by a failure of the evidence to show a filing of prtrof of loss by the plaintiff, it is without evidence to support it. The ruling in New Zealand Fire Insurance Co. v. Brewer, 29 Ga. App. 773 (8 a) (116 S. E. 922), is distinguishable in that there the plaintiff alleged a compliance with the provisions of the policy, and there was no evidence tending to show a waiver by the defendant of the provisions in the policy.

3. Where, upon the trial, testimony had been admitted that there had not been filed a proof of loss, but that the defendant, through its agent, had promised one of the plaintiffs to pay the loss, the testimony of this plaintiff that she had given to the defendant’s agent notice of her interest in the policy, was not inadmissible upon the ground that the evidence did not show a waiver by the defendant of its right to insist upon the filing of proof of loss. The testimony was admissible under an amendment to the petition which alleged that the plaintiff, although her name was not in the policy as an insured, was nevertheless a tenant in common with her husband, in whose name alone the policy was issued, and that at the time of the issuance of the policy it was mutually understood and agreed that the policy should issue in the name of both her and her husband as tenants in common of the property.

Decided September 17, 1928.

Hinton Booth, for plaintiff in error. Anderson & Jones, contra.

4. -In a suit where there is more than one plaintiff, and recovery, if any, should be in the name of all the plaintiffs, a charge of the court which assumes that liability, if there is any, is to one of the plaintiffs only, is harmless to the defendant.

5. Since the evidence presented an issue as to whether the defendant had waived its right to insist upon the provisions in the policy requiring the filing of proof of loss, none of the excerpts from the charge of the court were erroneous upon the ground that there was no evidence as to proof of loss-or as to a waiver by the defendant of its right to insist upon the terms of the policy requiring proof of loss.

6. The verdict found for the plaintiff was authorized.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    18364.
    Bennett, superintendent, et al., v. Duke, commissioner.
   Stephens, J.

1. The superintendent of banks having in charge an insolvent bank for liquidation under the authority of the banking act approved August 16, 1919 (Ga. L. 1919, p. 135 et seq.), is an officer of the State, charged with the duty of administering the assets of the bank in accordance with the terms and provisions of the act, and, notwithstanding the act provides that the superintendent of banks, in the performance of certain duties devolving upon him as such liquidating 'officer of the bank, such as making disbursements for expenses incurred in the liquidation of the bank and in selling the assets of the bank, must obtain an order of approval from the judge of the superior courl;, the superintendent of banks is not an officer or a receiver of the superior court. In administering the assets of the bank he is not amenable to the jurisdiction of the superior court. Cochram v. Bennett, 37 Ga. App. 202 (139 S. E. 428), and cit.

2. The power which is lodged in the judge of the superior court to approve the amount fixed by the superintendent of banks as expenses of liquidation of an insolvent bank taken over by him, as provided in article 7, section 23 of the banking act approved August 16, 1919, supra, and the act approved August 26, 1925, amendatory thereof (Ga. L. 1925, 119, 132), is not judicial, but administrative only, and confers upon the judge of the superior court no power to administer the assets of the bank by directing the disposition by the superintendent of banks of any funds belonging to the bank in an amount not approved by the court for 'disbursement as expenses of liquidation. This is true notwithstanding these funds may at the time have been already disbursed by the superintendent of banks as expenses of liquidation. If the disbursement of the funds of the bank made by the superintendent of banks, without the approval of the judge of the superior court, was illegal, the remedy is not by the assumption by the judge of the superior court of an unauthorized jurisdiction by directing the disposition of these funds by the superintendent of banks.

Decided September 25, 1928.

Orville A. Patrie, Allen & Pottle, 0. N. Davie, for plaintiff.

J. B. Dulce, for defendant.

3. The order of the judge of the superior court directing the superintendent of banks to pay over funds belonging to the assets of the bank, which he as superintendent of banks had taken over for liquidation, to a named person as “commissioner,” appointed by the court “to represent the interest of creditors, stockholders, and depositors” of the bank, and providing that in the event the superintendent of banks should fail to pay over the funds as ordered, he show cause why he should not be attached for contempt, was without authority of law.

Judgment reversed.

Bell, J., concurs. Jenldns, P. J., disqualified.


text:
    18393.
    Western & Atlantic Railroad v. Thompson.
   Stephens, J.

1. A witness could give his opinion as to the speed of a railroad train, when his opinion was based upon his experience in being knocked down and run over by the train, and he formed this opinion from “the way they struck” him and from the distance the train ran after striking him before stopping, although he did not see the train before it struck him. These facts, testified to by the witness, upon which the opinion was based, were sufficient to authorize the admission of his opinion in evidence, its probative value being for the jury.

2. A presumption of negligence proximately causing an injury arises against a railroad company upon proof that the injury was caused by the operation of the defendant’s train. Civil Code (1910), § 2780. It is not necessary, in order to enable the plaintiff to avail himself of this presumption, for him to prove, otherwise than by showing that his injury was caused by the operation of the defendant’s train, that the presumed negligence of the defendant proximately caused the injury. Western & Atlantic Railroad v. Dobbs, 36 Ga. App. 516 (137 S. E. 407).

3. While the presumption of negligence arising against a railroad company upon proof that the injury was caused by the -operation of the company’s train, as provided in the Civil Code (1910), § 2780, may be rebutted by its being made to appear that the agents of the company exercised ordinary and reasonable care and diligence, and while, in a suit against the company to recover for the injury, a complete defense is established upon proof by the company that its agents used ordinary and reasonable care and diligence, and while the court is not called upon to charge that in order to rebut this presumption of negligence, there is required more than proof that the company’s agents have used ordinary and reasonable care and diligence, yet where in the charge the court instructs the jury that this presumption of negligence is removed upon proof that the company has exercised ordinary and reasonable care and diligence, “or” (using the disjunctive) if the plaintiff’s injury was caused by some cause other than the defendant’s negligence, this charge is not subject to the objection that it places upon the company, in order to rebut the presumption of negligence, an additional burden not required by the statute.

4. Upon the trial of a suit against a railroad company in which the plaintiff seeks to recover damages for injuries received by him as a result of ' being run into by the defendant’s train while he was attempting to cross the track in front of it, it was not error for the court to instruct the jury that an ordinance of the city in which the injury occurred, which had been introduced in evidence, regulating the speed of railroad trains in the city limits, the validity of which was not attacked, was a valid ordinance, although he submitted to the jury, as an issue of fact, whether the ordinance was reasonable as applied to the place where the injury occurred. See, in this connection, Bugg v. Ledford, 35 Ga. App. 647 (134 S. E. 330).

5. Where upon the trial of such a case the court in the charge repeatedly instructed the jury that a duty rested upon the plaintiff to exercise ordinary care to avoid the injury, and that a duty also rested upon the plaintiff to use ordinary care to avoid the consequences to himself of the defendant’s negligence, and that if the plaintiff’s negligence caused the injury to him he could not recover, and where the court defined ordinary and reasonable care and diligence as “that care which every prudent man would exercise under the same or similar circumstances,” yet where the court nowhere instructed the jury that a duty rested upon the plaintiff to exercise due care to avoid injuries from dangers known to him, and where the evidence authorized an inference that the plaintiff was injured at a place traversed by many railroad tracks over which many trains passed, and that immediately preceding the time when he was injured he knew that he was in a dangerous place and was exposed to the danger of being run over by railroad trains, and the evidence being such as would authorize the inference that the plaintiff, in attempting to pass across the tracks of the defendant, failed to exercise due care under the eireumstanees, and that his own negligence was the cause of the injury to him, and where the evidence further authorized the inference that under the circumstances due care on the part of the plaintiff might have required him to look and listen before going upon the railroad track, and where the evidence did not malee a strong cause for recovery by the plaintiff, the court erred in not giving to the jury certain instructions requested by the defendant which were pertinent and adjusted to the issues made by the evidence, and were not specifically covered in the charge given, the requested instructions being as follows: “If a person is in a place of danger, he is under the duty not only to exercise ordinary care to avoid injury to himself from dangers known to him to exist, but he is also bound to use that degree of care and cau- ' tion which an ordinarily prudent person would exercise under similar circumstances to discover approaching danger and thereafter to avoid the same;” also, “If the jury believe that under the circumstances shown by the evidence prudent men, in "the exercise of ordinary care, would look and listen before going upon the railroad track, it would have been incumbent upon plaintiff to have done so.” See, in this connection, Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49); Columbus Railroad Co. v. Peddy, 120 Ga. 589 (3) (48 S. E. 149); Collum v. Georgia Railway & Electric Co., 140 Ga. 573 (3) (79 S. E. 475).

Decided September 25, 1928.

Rehearing denied September 28, 1928.

Tye, Peeples é Tye, for plaintiff in error.

Colquitt, Conyers & Smith, contra.

6. A verdict having been found for the plaintiff, the court erred in not granting the defendant a new trial.

Judgment 'reversed.

Jenloins, P. J., and Bell, J., concur.


author: Bell, J. Bell, J.

text:
    18655.
    MASSELL v. FOURTH NATIONAL BANK OF MACON.
    Decided August 31, 1928.
    Rehearing denied September 28, 1928.

      Alston, Alston, Foster & Moise, Albert E. Mayer, for plaintiff in error.

      Hall, Grice & Bloch, Spalding, MacVougald & Sibley, contra.
   Bell, J.

Fourth National Bank of Macon brought suit against Ben J. Massell, as acceptor, for the recovery of the aggregate amount of $15,112.78, principal, upon a number of trade acceptances drawn in the latter part of 1926 by Pynetree Paper Company, payable to the order of itself and accepted by the defendant. Each of the acceptances bore the following as' the signature of the drawer and was indorsed by this company as payee in the same manner: “Pynetree Paper Company, by A. F. Medlin, Asst. Mgr.” The defendant filed pleas which the court struck on general demurrer, and after judgment in favor of the plaintiff the defendant excepted.

The defendant in his answer alleged substantially the following facts by way of defense: (1) None of the indorsements as shown upon the trade acceptances were “the valid indorsements of the Pynetree Paper Company, for the reason that said indorsements were made by A. F. Medlin, assistant manager, and the said Medlin had no valid corporate authority to .indorse said trade acceptances for Pynetree Paper Company, and this defendant is informed and believes and therefore denies that the acts of the said A. F. Medlin have ever been ratified by said corporation.” (2) The plaintiff, Fourth National Bank of Macon, took the acceptances, provided there were valid indorsements of the same, with knowledge that they were secured by a loan deed conveying certain described real estate to the Pynetree Paper Company, as payee, and the bank neither took a transfer of this loan deed nor was in a position to secure or enforce the cancellation thereof upon the payment of the acceptances by the defendant. Pynetree Paper Company had been adjudicated a bankrupt, ’and the bank had filed its petition in the bankruptcy proceedings for the purpose of obtaining from the trustee in bankruptcy a transfer to the plaintiff of the property conveyed by such loan deed; but the bank had not been successful in these efforts, and the petition for that purpose was still pending. (3) The plaintiff made a contract with the defendant that if the acceptances were paid, it would cause a cancellation of the loan deed. Copies of the letters comprising this alleged contract were attached to the defendant’s answer. It was alleged that the bank “was not and has never been in position to comply with this contract to cancel said loan deed upon payment of this indebtedness.” The defendant had entered into a contract with a third person for the sale of the real estate so conveyed to secure the acceptances sued on, and because “defendant was unable to secure cancellation of the loan deeds as hereinbefore set out, this defendant has been injured and damaged in the sum of $15,000; . . said defense is good as against these acceptances without regard to whether the trustee of Pynetree Paper Company or the plaintiff in this cause is the legal holder of said notes and entitled to the proceeds arising from the collection thereof.” (4) “This defendant denies that the plaintiff is an innocent purchaser for value before maturity of these notes, for the reason that, upon information and belief, this defendant alleges that the plaintiff acquired said notes as a preference within four months of the bankruptcy of Pynetree Paper Company Inc., and this defendant alleges, upon information and belief, that the duly constituted and elected trustee of Pynetree Paper Company Inc. claims that as such trustee he is entitled to have and recover said acceptances from said plaintiff by reason that it was a preferential transfer under the existing bankruptcy acts.”

The allegations of the plea were insufficient to raise any question as to the validity or sufficiency of the indorsements of the acceptances. The title of the holder of a note may be inquired into where it is necessary for the protection of the defendant, or to let in any defense which he seeks to malm. Civil Code (1910), § 4290. But an indorsement or assignment of a negotiable instrument, when sued on by the indorsee, need not be proved unless denied on oath. Civil Code (1910), § 4299. In the present case the defendant does not deny that A. F. Medlin was assistant manager of Pynetree Paper Company and that he, in this capacity, executed the indorsements for and in behalf of that company. Merely to deny that he had authority so to act for his principal, without averring that the plaintiff took the paper with knowledge of such want of authority on his part, was not a denial of the indorsements within the meaning of the code. Under section 62 of the negotiable instruments act (Ga. L. 1924, p. 126), the acceptor, by accepting the instrument, engages that he will pay it' according to the tenor of liis acceptance, and admits the existence of the drawer, the genuineness-of his signature, and his capacity and authority to draw the instrument. Thus, in the present case the defendant admitted the genuineness of the signature affixed to the acceptances by Pynetree Paper Company as drawer. From this fact, considered in connection with the implications of authority arising from the title of assistant manager, and in the absence of anything to the contrary, it certainly should be presumed that Medlin had authority also to act for his company in indorsing the paper. Every corporation acts through its officers, and is responsible for the acts of such officers in the sphere of their appropriate duties; and no corporation shall be relieved of its liability to third persons for the acts of its officers by reason of any by-law or other limitation upon the power of the officer, not known to such third person. Civil Code (1910), § 2225. Medlin having apparent authority as assistant manager to execute the indorsements, even the corporation represented by him could not have defeated such indorsements merely by alleging that in truth and in fact he had no such authority and that his act in indorsing the paper had not been ratified. Much less could the indorsement be defeated by a third person (as in this case the defendant acceptor) by allegations which altogether fail to charge the plaintiff with notice of such lack of authority in the agent. See, in this connection, Louisville & Nashville R. Co. v. Tift, 100 Ga. 86 (27 S. E. 765); Tyson v. Bray, 117 Ga. 689 (2) (45 S. E. 74); Stubbs v. Fourth National Bank, 12 Ga. App. 539 (5) (77 S. E. 893); Dawson Paper Shell Pecan Co. v. Montezuma Fertilizer Co., 19 Ga. App. 42 (2) (90 S. E. 984); Bussell v. Dannenberg Co., 34 Ga. App. 792 (132 S. E. 230); LaGrange Lumber &c. Co. v. Farmers & Traders Bank, 37 Ga. App. 409 (3) (140 S. E. 766); Edwards v. Camp, 29 Ga. App. 556 (2) (116 S. E. 210); Civil Code (1910), § 3595; 14 C. J. 372, 459; Turner v. Clarke, 143 Ga. 44 (3) (84 S. E. 116).

The instant case should be distinguished from the cases of Bruce v. Neal Bank, 134 Ga. 364 (67 S. E. 819), Carter v. Haralson, 146 Ga. 282 (91 S. E. 88), and Federal Discount Co. v. Carter, 14 Ga. App. 645 (82 S. E. 51). In each of those cases there was a denial on oath of the genuineness of the indorsement, and this was to charge in effect that the indorsement was a forgery. See Civil Code (1910), § 4286; section 23 of the negotiable instruments act, supra,

Whether, if the plea had contained a further allegation to the effect that the plaintiff took with knowledge of the lack of authority of the agent to make the indorsements, this would have rendered the plea good, is a question that need not be decided, and that is not decided, in this ease. Johnson v. Waxelbaum Co., 1 Ga. App. 511 (58 S. E. 56).

The fact that the land deeded to the original payee to secure the acceptances was not conveyed to the plaintiff along with the indorsements of the acceptances was no reason why the plaintiff should not recover. Clark v. Havard, 122 Ga. 273 (50 S. E. 108); Pape v. Woolford Realty Co., 35 Ga. App. 284 (4) (134 S. E. 174). While a transfer of the debt by the grantee in the deed did not, in the absence of a conveyance, pass to the transferee the legal title to the land, such transfer of the debt operated to vest in the transferee an equitable interest in the security, and the grantee in such deed thereafter held title to the land for the benefit of the transferee. Davis v. Elliott, 163 Ga. 169 (135 S. E. 731); First National Bank v. Pounds, 163 Ga. 551 (2) (136 S. E. 528). Whatever obligation may have rested upon the .grantee to reconvey the land or to effectuate a cancellation of the deed upon the payment of the debt, the record discloses no assumption of such obligation by the plaintiff transferee. The acceptances upon which the defendant became bound contained no provision making such reconveyance or cancellation by an indorsee a condition precedent to the right to enforce payment. Jeanes v. Atlanta & Lowry National Bank, 34 Ga. App. 568 (130 S. E. 353). Furthermore, upon payment of the debt defendant will have his remedy, regardless of the position or attitude either of the plaintiff or of the grantee in the security deed. Williams v. Foy Mfg. Co., 111 Ga. 856 (36 S. E. 927); Shumate v. McLendon, 120 Ga. 396 (48 S. E. 10); Civil Code (1910), §§ 3309, 3310.

In Citizens Mercantile Co. v. Easom, 158 Ga. 604 (123 S. E. 883), there was presented to the Supreme Court the question whether “the payment of a debt secured by deed put title to the land therein embraced back into the grantor, so that it can be levied on under an execution issued on a judgment junior in date to such deed, without a formal reconveyance of such land by the grantor to the grantee in such security deed.” The court, speaking through Mr, Justice Hines, held that payment of the debt vested in. the grantor a perfect title to the land, and in discussing the question said: “The full payment of the purchase-money of land, accompanied with possession, gives to the purchaser a legal title. Full payment of the purchase-money invests the purchaser with legal title, and not a mere equitable title. A perfect equity is, in this State, a good title even at law, and is sufficient to support or defeat ejectment. Pitts v. McWhorter, 3 Ga. 5 (46 Am. D. 405); Peterson v. Orr, 12 Ga. 464 (58 Am. D. 484); May v. Sorrell, 153 Ga. 47, 52 (111 S. E. 810); Elrod v. Bagley, 154 Ga. 670 (115 S. E. 3). It logically follows that full payment of the secured debt revests in the grantor the title to the property therein conveyed; and this being so, the grantor in such deed, after such full payment of the secured debt, has a leviable interest in the land therein embraced. We are aware that this court has held that * the doctrine of perfect equity as the equivalent of legal title is, so far as we know, restricted to the relation of vendor and purchaser’ (Howell v. Ellsberry, 79 Ga. 475, 5 S. E. 96); but in that and in similar cases this court was dealing with the equities of donees and persons occupying similar relations. The relation of grantor and grantee in a security deed is so near of kin to that of vendor and purchaser that the doctrine of a perfect equity being eqriivalent to a legal title should be applied.”

So, in the present case, we think the defendant’s allegations as to the condition of the title to the property which he had conveyed to secure the debt were insufficient to disclose any defense in his favor.

The letters referred to in paragraph 3 of the above statement were as follows:

“December 18, 1926.
“Fourth National Bank, Macon, Ga.
“Attention Mr. Charles B. Lewis, President.
“Dear Mr. Lewis: I am arranging to refinance the credit extension of $15,000 which you hold in trade acceptances from the Pynetree Paper Company. It will be necessary, when these items are paid, to release the collateral which you hold in the form of a loan deed on the Buena Yista farm, and I request that you have all papers ready so that when these items are paid, the Pynetree Paper Company, through the proper officials, as well as the Fourth National .Bank, shall quit-claim the property to me,” [Signed by the defendant.]
“Macon, Georgia, December 2?, 192G.
“Mr. Ben J. Massell, 43-[4 Peachtree St., Atlanta, Ga.
“Dear Mr. Massell: With reference to jour favor of December 18th, beg to advise that we are now in position to deliver to you the cancelled loan deed on the Buena Vista farm, upon payment of the $15,000 held by us in trade acceptances from the Pynetree Paper Company.” [Signed for the bank.]

Regardless of whether there may be other infirmities in the defense sought to be made in view of these letters, the agreement 'alleged to have resulted from such communications was a nudum pactum, and thus constituted no legal basis for a claim of damages put forward as for a breach of contract. Civil Code (1910), § 4241.

That the plaintiff may have acquired the acceptances as a preference within four months prior to the bankruptcy of the indorser, Pynetree Paper Company, was of no concern to the defendant acceptor, under’ the facts appearing. If the title of the plaintiff could be defeated at all upon the ground stated, the trustee in bankruptcy, and not the defendant, was the proper person to raise the question. Tyson v. Bray, 117 Ga. 689 (2) (45 S. E. 74); Gray v. Oglesby, 9 Ga. App. 356 (71 S. E. 605); Thompson v. Franklin National Bank, 45 App. Cases (D. C.), 218; 8 Cyc. 43 (b); 20 Cyc. 625.

Section 51 of the negotiable instruments act provides that the holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument. If the plaintiff held the note in fraud of the other creditors of Pynetree Paper Company, it did not hold it in fraud of the defendant, who was not a creditor, but a debtor, of this company, and assuming that the allegations here considered show a right against the plaintiff in favor of some other person, the right is not one inuring to the benefit of the defendant, and hence can not be claimed by him as a defense.

The defendant’s answer failed to set forth any valid defense, and the general demurrer thereto was properly sustained.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

ON MOTION ROB REHEARING.

Bell, J.

The motion for rehearing is aimed at the ruling in the first headnote and in the corresponding division of the opinion. It is apparent that counsel for movant, the plaintiff in error, have construed our decision as holding that the authority of Medlin as assistant manager, to indorse the instruments in behalf of the corporation, should be -inferred from the mere fact that he had drawn them in the first instance, the defendant by acceptance being committed to his authority to draw them. It is urged “that where an agent or officer of a corporation is authorized to draw a draft, this does not give such agent or officer authority, after the draft has been drawn, to indorse the same for the corporation,” and that in our decision as above rendered we have ruled to the contrary of this principle, overlooking certain English cases, as well as certain decisions by the Supreme Court of Georgia, to be mentioned hereinafter.

It was not in the mind of this court to rule that the authority of the agent to indorse the instruments should be presumed merely from the fact that he had drawn them and obtained their acceptance by the defendant. We thought, however, that the admitted authority of the agent to perform the latter function amounted to some evidence of authority to negotiate the paper by indorsement, and that this fact might be- considered in connection with the further fact that the person indorsing the paper held the office of assistant manager of the corporation, concluding that in these circumstances, and in the absence of anything to the contrary, it should be presumed that the agent had authority to indorse. But assuming now that authority to draw was absolutely no evidence of authority to indorse, we are still of the opinion that the defendant’s answer failed to make any issue as to the plaintiff’s title to the paper sued on. From the cases cited in our original opinion (and see further, in this connection, Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (7), 50 S. E. 1008), we think that where a person holds the office of assistant manager of an ordinary commercial corporation and in that capacity indorses and delivers to another person in behalf of his company negotiable paper belonging to it, it should, in the absence of anything to the contrary, be presumed that in so doing he was acting within the scope of his authority.

In the present ease it appears, both from the petition and the answer, that the plaintiff was in possession of the paper sued on, holding the same under the indorsement referred to above; and by section 16 of the negotiable instruments act it is provided that “where the instrument is no longer in possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” Ga. L. 1924, p. 130. Compare 3 R. C. L. 980, 981.

In a suit upon a negotiable instrument held by the plaintiff under an indorsement by an agent of the payee, it is not necessary that the agent’s authority should appear upon the note or that it should be alleged in the petition. Garrison v. Combs, 7 J. J. Marshall (Ky.), 84 (22 Am. D. 120); Bettis v. Bristol, 56 Iowa, 41; Northwestern Savings Bank v. International Bank, 90 Mo. App. 205. It would seem to follow that any lack of authority in the agent to indorse would be a matter of defense, and, not only this, but that where, as here, the person indorsing the paper did so in his official character as assistant manager of the payee corporation, the onus would also be upon the defendant to show the limitation upon the authority of such agent so to act in the premises, with knowledge of that fact by the person holding and claiming by virtue of such indorsement.

According to section 21 of the negotiable instruments act, a signature by procuration operates as a notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent so signing acted within the actual limits of his authority. The question here, however, is in relation to the apparent authority of a particular officer of a corporation, and is not in reference to a signature by procuration. 3 Bouvier’s Law Dictionary, 2558, 2732; 6 Words & Phrases, 5662. With further reference to the applicability of this provision in a case of this sort, see Bennett v. Potashnick, 214 Mo. App. 507 (257 S. W. 836).

Coming now to the cases referred to in the motion for rehearing, we will notice first the case of Robinson v. Yarrow, 7 Taunt. (Eng.) 455. In that case, after the dissolution of the partnership of C. Staeben & Company, one of the former partners, A. Henry, drew a bill on the defendant, payable to the order of the partnership, and signed the same “P. pro C. Staeben and Co., A. Henry,” the phrase “p. pro” meaning per or by procuration. The paper was subsequently indorsed to the plaintiff in like manner, and, in the suit against the defendant who had accepted the bill, the question was as to the authority of the former partner to execute the indorsement. It was held that while the defendant in accepting the bill admitted the authority of the former partner to.-draw it, this, without more, did not establish his right to indorse-or-negotiate it. That case is clearly distinguishable from the one now und.er consideration, because there the person indorsing the -paper had no actual or implied authority to do so merely in virtue of his previous relationship as a partner. In the present case we have the continuing relationship of an assistant manager, from which office some power is to be implied.

In Beemer v. Duck, 11 M. & W. (Eng.) 251, the drawing and the indorsement were both forgeries. It was said, as an intimation or semble, “that where the name of a real partjq as the drawer, is forged, a party who- accepts the bill in ignorance of the forgery is estopped to deny the drawing only, but not the indorsement,, although in the same handwriting.” That case is unlike the present in that here neither the drawing nor the indorsement was a forgerjq but the question is in relation to the authority of a designated officer of the payee corporation.

Our decision in the instant case in no wise conflicts with the ruling of the Supreme Court in Exchange Bank v. Thrower, 118 Ga. 433 (45 S. E. 316). In that case the agent whose authority was in question was merely the cashier of a State manager of an insurance company, and it was held that the fact that he was authorized to indorse, for deposit, checks in behalf of the manager did not empower him to indorse checks and drafts in blank so as to collect the money thereon.

In Dobbins v. Etowah Mfg. Co., 75 Ga. 238, the action was between the original parties, and no question as 'to the right of the holder of negotiable paper by indorsement was involved. The notes were signed by one as general superintendent of the defendant corporation, and in doing so he was acting under specific authority known to the payee. In the opinion the Supreme Court said: “In this case, it will not avail the plaintiff that the company held out this party as an agent to bind it in this manner, for he knew, or is presumed to have known, its powers under the charter, and he swore that he had seen the paper under which this agent acted before he would advance money for the company. That he was mistaken as to the authority of the agent and the extent of his power to bind his principal, and that he parted with his money under the mistaken belief that he was dealing with the corporation, and that it would thereby and in that manner become bound to him as its creditor, may, perhaps, be probable, but this belief, without more, would not render it liable on these notes, especially where it was shown that it took no part in misleading him.”

In Union Savings Bank v. Ellis, 110 Ga. 495 (35 S. E. 780), it was contended by the defendants that the plaintiff, as holder by indorsement, got possession of the note sued on through one Nelligan as its officer, with full knowledge of the defenses asserted. The evidence tended to show knowledge of such defenses by Nelligan, and the question as raised in the Supreme Court .was, whether there was any evidence that Nelligan “was an official of the bank charged with the duty of discounting papers,” so that notice to him was notice tó the bank. The only evidence of his agency or official character was the testimony of one of the defendants that he was “the accountant and general manager of the Union Savings Bank.” The Supreme Court said that this office in relation to a bank was an anomalous one, and, in effect, held that “so uncommon a bank official” had no implied power, merely in virtue of his office, to discount paper in behalf of the bank. In the instant case the officer who negotiated the paper sued on was assistant manager of an ordinary business corporation, and this was no anomalous or uncommon office such as was dealt with in relation to a bank, in the Ellis case.

We are thus of the opinion that each of the cases cited in the motion for rehearing is to be distinguished from the case at bar, and our conclusion is that the motion for rehearing should be denied.

Rehearing denied.

Jenkms, P. J., and Stephens, J., concur.


text:
    18400.
    McIntosh County et al. v. Seaboard Air-Line Railway Co.
   Stephens, J.

1. Any local tax for educational purposes imposed by county authorities, outside of any independent local school systems in the county, is governed by article 8, section 4, paragraph 1 of the constitution of this State, as amended by an amendment ratified November 2, 1920 (Ga. L. 1919, p. 66; Park’s Code Supp. 1922, § 6579), and shall not exceed in the aggregate 5 mills, as provided therein, whether the tax.is imposed under any one or all of the following legislative enactments: Civil Code of 1910, § 513; § 1534, providing for the imposition of the tax when authorized by a popular vote, aud an act approved August 19, 1922 (Ga. L. 1922, p. 81), authorizing “the several counties of this State to levy and collect taxes for educational purposes in such amounts as the county authorities shall determine.” Brown v. Martin, 162 Ga. 172 (132 S. E. 896). See also, in this connection, McMillan v. Tucker, 154 Ga. 154 (6) (113 S. E. 391); Almand v. Board of Education, 161 Ga. 911 (131 S. E. 897); Central of Georgia Ry. Co. v. Wright, 165 Ga. 1, 9, 10 (139 S. E. 890).

Decided September 25, 1928.

Tyson & Tyson, for plaintiffs.

Conyers & Gowen, for defendant.

2. Where a local tax for educational purposes was imposed by the county authorities of the county of McIntosh upon the taxable property in the county, there being no independent local school systems in the county, at the rate of 5 mills, under the authority of section 1534 of the Civil Code of. 1910, and at the rate of 5 mills under the authority of the act of 1922, supra, thus aggregating 10 mills, the tax was, by 5 mills, in excess of that which the county authorities could legally impose.

3. A local school tax of 5 mills levied for educational purposes by the county authorities under the authority of the Civil Code (1910), § 1534, after an authorization by a popular vote in the year 1912, was preserved by the constitutional amendment of 1920, which provides that “no additional election shall be required to maintain any local school tax not in existence in districts, counties, or municipalities.” This constitutional amendment, which authorizes the county authorities to levy a tax for educational purposes without a vote of the people authorizing the tax, and which also preserves the local county taxes for educational purposes already levied by the county authorities under authority of the vote of the people as was provided by law before the passage of the amendment, does not authorize the imposition of a tax by counties for educational purposes in excess of 5 mills, although the tax may have been levied by virtue of authority obtained by vote of the people.

4. The defendant’s affidavit of illegality, contesting the tax levy upon its property to the extent of 5 mills for educational purposes, was properly sustained.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    18422.
    White v. Idelson.
   Stephens, J.

1. A landlord’s lien for rent, whether the special lien upon the crops grown on the rented premises which is created by statute (Civil Code of 1910, § 3340), or the general lien which arises upon the levy of a distress warrant, is not a lien created by judgment or one “obtained through legal proceedings,” and is therefore not, under the bankruptcy act of 1898 (30 Stat. 565, § 67-f), discharged by the filing of a petition for the tenant’s discharge in bankruptcy, although within four months of the creation of the lien. Henderson v. Mayer, 225 U. S. 631 (32 Sup. Ct. 699, 56 L. ed. 1233); In re Burns, 175 Fed. 633.

Decided September 25, 1928.

H. W. Nalley, for plaintiff in error. W. S. Mann, contra.

2. Since the replevy bond for the eventual condemnation money given by the tenant after the levy of a distress warrant, as provided in the Civil Code (1910), § 5391, takes the place of the lien which is not nullified or discharged by the tenant’s bankruptcy (bankruptcy act of 1898, 30 Stat. c. 541, § 16), the surety is liable on the replevy bond notwithstanding the tenant’s liability for the debt is discharged by the tenant’s bankruptcy. Phillips v. Solomon, 42 Ga. 192. See also, in this connection, Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317, 321 (119 S. E. 25).

3. Under the undisputed evidence adduced upon the trial of the issue formed by the affidavit of illegality filed by the surety on the replevy bond, the court properly rendered judgment against the affiant, sustaining the levy.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    18637.
    Groover v. Goldstein.
   Stephens, J.

1. One who has contracted as agent for a commission to procure a loan for another, to be secured by real estate belonging to the latter, does not complete his contract by merely procuring a lender who is ready, willing, and able to make the loan upon the terms proposed by the borrower. The agent must actually obtain the money, unless his failure to do so is due to some fault legally attributable to the borrower. Hanesley v. Bagley, 109 Ga. 346 (34 S. E. 584).

2. The borrower, when accepting the lender’s offer to make the loan, performs an obligation under his contract with the agent; and although the borrower may, before the completion of the loan, signify to the agent his intention not to accept the loan, yet where this fact is not communicated to the lender, and can therefore constitute no justification of the lender for a failure to perform, and the borrower afterwards, while the lender’s offer is still open, accepts it, although in a communication direct to the lender, the borrower’s previous communication, made to the agent, of an intention not to accept the loan, amounts to no breach by the borrower of his contract with the agent.

3. Where the lender procured by the agent refuses to make the loan, for no reason legally attributable to the borrower, the agent has not performed his contract with the borrower, and therefore is not entitled to the commission contracted to be paid by the borrower to the agent for the latter’s services in procuring the loan. Hanesley v. Bagley, supra. Whatever obligation, if any, the lender is under to complete the loan is an obligation due by him to the borrower, and not to the borrower’s agent. A demand upon the lender by the borrower, that the lender complete the loan with the borrower directly and not through the agent, is an insistence by the borrower upon a compliance by the lender with whatever obligation the lender may be under to complete the loan, and is not an act by the borrower refusing to complete the loan, or one preventing the performance by the lender of the completion of the loan.

Decided September 25, 1928.

W. H. Hammond, J. B. Burch, for plaintiff.

Titus & Delcle, for defendant.

4. In a suit by the agent against the borrower, to recover commissions alleged to be due under the contract by which the plaintiff was employed by the defendant to procure the loan, the evidence, under the above rulings, authorized the verdict for the defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    18676.
    Spurlock v. Garner.
   Stephens, J.

1. A written instrument executed by an employee to a person other than his employer, in substantially the same language as the writing described in Central of Georgia Railway Co. v. King, 137 Ga. 369 (73 S. E. 632), with the exception of a variation in the names, dates, and the amount of money, is, as was held in that case, an assignment by the person executing the instrument, transferring and assigning to the assignee mentioned therein the legal title to the particular money specified therein; and the legal title to the money assigned thereby and the right of possession thereto are vested in the assignee.

2. A salary assignment made by a debtor to a creditor in satisfaction of a past due debt is not void as lacking in consideration.

3. The legal title and the right of possession to the money assigned being in the assignee, any act of dominion asserted over the money by the assignor in denial of the assignee’s title and right to possession of the money and inconsistent therewith, and by which the assignee is deprived of his title and right to the possession of the money, constitutes a conversion of the property by the assignor, for which an action in tort lies by the assignee against the assignor. Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S. E. 802); Maxwell v. Harrison, 8 Ga. 61 (6) (52 Am. D. 385).

4. Where an assignor who has made an assignment to another, in payment of a debt, of salary already earned by the assignor in the employ of a third person, files a petition in bankruptcy in which he schedules among his assets, as money due to him by his employer, the particular money which is the subject-matter of the assignment, and thereby directs it to the payment of debts due by him to his creditors generally, he thereby exercises a dominion over the property of the assignee, in denial of the assignee’s title and right to possession of the money and inconsistent therewith, and by which the assignee is deprived of his title and right to the possession of the money.

5. Where an employee, after having transferred and assigned his earned salary to another, wrongfully converts it to his own use, he is, guilty of a wilful and malicious injury to property, within the meaning of § 17 (2) of the bankruptcy act as amended by the act of February 5, 1903 (32 Stat. 798, U. S. Comp. St. 1916, § 9608), and his liability to the assignee for such tortious act is not released by the assignor’s discharge in bankruptcy. Covington v. Rosenbusch, 148 Ga. 459 (97 S. E. 78).

6. Where, in the execution of the instrument purporting to be a salary assignment, no fraud was practiced upon the assignor, and no fiduciary or confidential relation existed between him and the assignee, or the latter’s attorney who procured the execution of the instrument, and where it appears that the assignor could read and write, and no excuse for not reading the instrument appears, the assignor can not evade liability under the contract upon the ground that he was fraudulently induced to execute it by representations, made by the attorney for the assignee, that the instrument was but an evidence of the assignor’s indebtedness to the assignee. Towns v. West, 16 Ga. App. 300 (85 S. E. 274).

7. The written instrument constituting the salary assignment, being unambiguous and constituting a complete contract on its face, can not, in the absence of fraud, be varied or contradicted by contemporaneous parol agreements and understandings.

8. One who has purchased the salary of another, but who is not engaged, “generally, regularly, or collaterally to any other business, . . in the business of buying wages or salaries,” is not required to obtain a license as required under the act approved August 15, 1904 (Ga. L. 1904, p. 79), as codified in §§ 3446 et seq. of the Civil Code of 1910, which provides that no person shall so engage “in the business of buying wages or salaries, without first obtaining a license for carrying on such business.” The general tenor of this act is to require such licenses of persons engaged in the business, and not of a person not engaged in the business and who makes an isolated purchase of wages or salaries. Section 5 of this act, which is § 3453 of the Civil Code of 1910, which provides “that any sale or assignment of wages, or salary, whether made for the purpose of securing a debt in existence be fore said assignment is made, or for the purpose of procuring an advancement of money at the time the assignment is made, shall be governed in all respects by the provisions of this act,” is not to be construed as requiring a person who is not “generally” engaged “in the business of buying wages or salaries,” but who has made a single isolated purchase of salary by taking a salary assignment, to obtain a license as required by the act. This section is to be construed as bringing within the requirements of the act a sale and assignment of wages when made for the purpose of securing a debt, whether in existence or whether created at the time of the sale or assignment, in addition to an absolute sale of wages or salaries for which provision is made in section 1 of the act.

9. Under the above rulings the judge of the municipal court of Macon, ■upon the trial of a suit instituted by the assignee of salary against the assignor, to recover damages for an alleged conversion of the money assigned by the defendant, did not err in striking the defendant’s plea of bankruptcy, or in excluding evidence of fraud offered by the defendant, and under the undisputed evidence, did not err in directing a verdict for the plaintiff The judge of the superior court therefore erred in sustaining a certiorari sued out by the defendant.

Decided September 25, 1928.

J. D. Hughes, for plaintiff. H. F. Goodrum, for defendant.

10. Since the petition for certiorari should have been dismissed upon the ground that the petition does not show that error was committed in the trial court, it is unnecessary to pass upon the exception, made in the bill of exceptions, by the defendant in certiorari, who is the plaintiff in error here, to the refusal of the judge of the superior court to dismiss the petition for certiorari upon the ground that by the act approved August 7, 1925 (Ga. L. 1925, p. 463), abolishing the writ of certiorari to the municipal court of Mapon, the superior court of Bibb county had no jurisdiction -in the matter.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur.


author: Luke, J.

text:
    18210.
    Johnson v. The State.
   Luke, J.

“1. ‘Any officer, director, agent, clerk, or employee of any bank, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, securities, or credits of the bank, or who issues or puts forth any certificate of deposit, draws any draft or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, decree, or execution, or who makes use of the name of the bank, in any manner, with intent in either case to injure or defraud the bank, or any person, firm, or corporation, or to deceive any officer of the bank, or the superintendent of banks, or any examiner, or any person who with like intent aids or abets any such officer, director, agent, clerk, or employee in any violation of this section, shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than ten years.’ This being a penal statute, it must be strictly construed.”

“2. Under an indictment based on. this statute, charging the defendant with embezzlement of ‘ moneys and funds ’ of a bank, he could not be convicted of the embezzlement of ‘notes, securities, or credits’ of the bank; and the trial judge erred in giving to the jury an instruction which authorized them to convict the defendant of the embezzlement of notes, securities, or credits.”

3. The foregoing rulings were made in this case by the Supreme Court on certiorari (166 Ga. 755, 144 S. E. 283), and, under the rulings of the Supreme Court, the former judgment of this court (37 Ga. App. 129, 139 S. E. 118), affirming the judgment of the trial court, is vacated, and the judgment below is now

Decided September 26, 1928.

W. I. Geer, A. B. Conger, Little, Powell, Smith & Goldstein, Kendrick L. Scott, for plaintiff in error.

B. C. Gardner, solicitor-general, contra.

Reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    18636.
    Fender et al. v. Hodges.
    Decided September 26, 1928.

      Little & Dickerson, for plaintiffs in error.

      F. S. Harrell, F. K. Wilcox, contra.
   Luke, J.

1. “Where one obtained and duly recorded a security deed in 1922, without notice of any kind of the existence of an unrecorded bond for title from his grantor to the same land dated in 1920, the former is entitled to priority in the distribution of the proceeds derived from the sale of such land. The same priority exists in favor of subsequent holders under duly recorded deeds as against a transferee of the bond, such transfer never having been recorded. The Court of Appeals erred in rendering a decision to the contrary.”

2. The foregoing ruling was made in this case by the Supreme Court, on certiorari (166 Ga. 727, 144 S. E. 278). Under that ruling the former judgment .of this court (38 Ga. App. 78, 142 S. E. 753) is vacated, and the judgment of the trial court is now

Reversed.

Broyles, G. J., and Bloodtcorlh, J., concur.


text:
    18371.
    Jackson et al. v. Pruitt.
   Stephens, J.

1. In a suit upon a promissory note, where the defendant pleaded that the note sued on was not a valid and binding obligation, in that it was executed by him and another person and delivered to the plaintiff on the condition that another note held by the plaintiff against the defendant and still another person jointly should be surrendered to and returned to the defendant and his comaker on the note sued on, that the note sued on was not to become a complete and binding contract until the other note had been surrendered and delivered to this defendant and the comaker as alleged, and, where the plea alleged that this condition had not been complied with, any evidence tending to show the defendant’s liability upon the other note, or his willingness or intention to pay the obligation represented by it, and any evidence that the defendant received the money which was the consideration for that note, was irrelevant to the issue as presented by the pleadings, and the admission in evidence of testimony tending to establish any or all of such facts was calculated to prejudice the defendant’s case before the jury. The court therefore erred in the admission of testimony offered by the plaintiff as set out in grounds 1, 2, 4, 6, and 7 of the amendment to the motion for a new trial, and a new trial must be granted to the defendant. Since, under the evidence offered by the defendant in support of the plea, a verdict for the defendant would have been authorized, this error demands the grant of a new trial to the defendant.

Decided September 26, 1928.

G. A. Johns, J. G. Pratl, for plaintiffs in error.

Jones, 'Davie & Reid, Richard B. Russell Jr., contra.

2. Where the defendant filed contradictory pleas, one as indicated above, and the other that the note was given to the plaintiff to be exhibited by him to the defendant’s comaker on the- other note for the purpose of inducing the latter person to pay the note, it was error for the judge to fail to charge, as duly requested in writing by the defendant (the matter ,not being covered in the charge of the court), that a defendant has the right to file contradictory pleas, that no part of a defendant’s plea pan be stricken as being contradictory to any other matter pleaded, that the -defendant may avail himself of any advantage under any part of or the whole of his pleadings, that the jury may consider all of the pleadings, and find the truth from the evidence. A charge made by the court with reference to contradictory pleas filed by the defendant, “that under the law the defendant has a right to file contradictory pleas if he, sees fit,” does not cover the matter requested.

3. It is not error for counsel for the plaintiff, on cross-examination of the defendant as a witness, to call his attention to alleged contradictions in his pleadings or in his testimony, and require him to answer as to ' which of the alleged contradictory statements is true.

4. It avoids any possibility'of prejudicial error for the court, when giving a requested charge, to refrain from informing the jury that the charge given has been requested by a party to the case.

5. As the case is to be retried, it is unnecessary to pass upon the other assignments of error.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


author: Stephens, J. Jenkins, P. J.,

text:
    18465.
    Hall, administrator, v. Slaton.
   Stephens, J.

1. In a suit instituted in a court of this State to recover damages for a tort committed in another State, where the plaintiff pleads in the petition, as the law of the other State applicable to the case upon its merits, not a statute of that State, but the law of that State as interpreted by the courts of that State and applied in that State, a rule which differs from the common-law rule as construed and applied by the courts of this State, the plaintiff is not pleading the common law of the foreign State, but is pleading that the law of the foreign State applicable to the case is other than the common law. Selma, Rome & Dalton Railroad Co. v. Lacy, 43 Ga. 461, 463; Pattillo v. Alexander, 96 Ga. 60 (22 S. E. 646, 29 L. R. A. 616).

2. In a suit instituted in a court of this State to recover damages for a tort committed in another State, which is a State in which the common law prevails, — as the State of Alabama, — the plaintiff may plead and prove, as the law applicable to the merits of the case, both the statutory and unwritten law of that State, which is other than the common law as would be applied to a similar situation by the courts of this State, and the courts of this State will apply to the case the law of the foreign State thus pleaded and proved, as construed and interpreted by the courts of that State. See 22 C. J. 928; Minor on Conflict of Laws, 530; 12 C. J. 200; Story on Conflict of Laws, § 642; 13 Am. & Eng. Enc. Law (2d ed.), 1069; 6 Am. & Eng. Enc. Law (2d ed.), 268; Houghtaling v. Ball, 19 Mo. 84 (59 Am. D. 331).

3. The speed at which an automobile is being operated may, like any other fact, be established by circumstantial evidence. The fact that an automobile, which ran off a bridge, broke through and tore down upright timbers which were consecutively placed on the side of the bridge at certain distances one from the other, the effect which the automobile had upon these timbers and the location of the automobile after it fell off the bridge are circumstances which would indicate the speed at which the automobile was traveling when it hit the upright timbers and ran off the bridge. Since the effect produced upon the timbers of the bridge by the automobile, and the inference to be drawn therefrom as to its speed when it collided with the timbers, can be more intelligently determined by a witness observing the condition of the timbers than by the members of the jury from a description of the condition of the timbers made by the witness, the witness’s testimony as to his opinion ' of the speed at which the automobile was traveling when it collided with the timbers is, when the witness details the facts upon which this opinion is given, admissible in evidence. Such testimony is not inadmissible upon the ground that the witness was not acquainted with the size and weight of the particular automobile which caused the damage. Irrespective of the size and weight of an object, its rate of speed may be determined from the impression made by it upon another object.

4. The fact that the witness, after having testified to his opinion as to the speed at which, from his observation of the condition of the timbers on the bridge, the automobile was traveling when it hit the timbers, testified that he did not know what speed would break the timbers did not render inadmissible his testimony as to his opinion of the speed at which the automobile was traveling- when it hit the timbers. Such fact affects only the probative value of the testimony.

5. The fact that a witness was an expert automobile mechanic, who for 15 years had been acquainted with the mechanism and construction of automobiles and had driven high-powered automobiles, qualified him as an expert to testify that an automobile of the particular make of the automobile which ran through the timbers on the bridge was low geared and not built for speed, and that an automobile three years old, which had never been worked over within that period, such as the automobile which ran off the bridge, would not be capable of as high speed as when it was new.

6. Upon the trial of a suit against the driver of an automobile to recover damages for the homicide of a person who was riding in the automobile with the driver, where it was alleged in the petition that the homicide resulted from the negligence of the driver in operating the automobile at an excessive rate of speed, and in negligently failing to have it under control when passing over the bridge, and that as a result of such negligence the automobile tore through upright timbers on the side of the bridge and ran off the bridge, where there was evidence adduced to the effect that the automobile was traveling on a long, smooth highway, approaching- the bridge at a speed of about sixty miles per hour, that in the road, near the entrance of the bridge, there was a small depression or ditch, and also a slight turn to the left in the roadway, that the driver of the automobile had, a few hours before, passed over the bridge and the roadway going in the opposite direction, that he was endeavoring to reach his destination before the death of a person who was dying, that afterwards it was stated in the presence of the driver that the automobile, when it ran through the timbers on the bridge, was traveling at a speed of sixty miles an hour, that the automobile, after it had turned to the left onto the bridge, ran through the timbers upon the right side of the bridge, the evidence adduced upon the trial, and the evidence as to the speed of the automobile, which was erroneously rejected, to the effect that the automobile, when it ran through the timbers on the bridge, was Being operated at a speed of fifty or sixty miles an hour, authorized the inference that the driver of the automobile drove it onto the bridge at a negligent rate of speed, and was negligent in not having the automobile under control at the time, and that, as a result of this negligence, which amounted to a failure on the part of the driver to exercise ordinary care and diligence in operating the automobile, the person riding with him was killed; and since the rule of law applicable in the State of Alabama in which the accident occurred, which rule, the plaintiff alleged in the paragraphs of the petition which were stricken on demurrer was, that the defendant owed to the person killed only ordinary care and diligence foi his safety, the evidence adduced and illegally rejected would, under the law of Alabama pleaded as applicable to the case, have authorized a verdict for the plaintiff.

8. The trial court erred in striking, on demurrer, the paragraphs of the plaintiff’s petition in which the plaintiff pleaded both the unwritten and the statute law of the State of Alabama, as construed by her courts, and erred in rejecting testimony as indicated above, and in thereafter granting a nonsuit.

Decided September 26, 1928.

Hugh Reed, Porter & Mebane, for plaintiff.

Graham Wright, for defendant.

Judgment reversed.

Bell, J., concurs.

Jenkins, P. J.,

dissents from the rulings stated in the first and second paragraphs above, but concurs in the judgment.


text:
    18647.
    Battle v. Ricks Lumber Company.
   Stephens, J.

1. It is the duty of a levying officer charged with the execution of a process in a bail and trover suit either to seize the property or to take a bond from the defendant for the eventual condemnation money, Civil Code (1910), § 5152. On a failure of the officer to do either, he is liable for the resulting damage to the plaintiff. Snell v. Mayo, 62 Ga. 743; Edwards v. Boyd Co., 136 Ga. 733 (72 S. E. 34); Griner v. Smith, 26 Ga. App. 319 (106 S. E. 20).

2. In a suit against the sheriff, instituted by the plaintiff in a bail and trover proceeding to recover damages sustained by the plaintiff as a result of the failure of the sheriff to hold the defendant to bail or to seize the property, where the property as described in the petition and the affidavit for bail was a 25-horsepower portable Frick boiler mounted on metal wheels and steel axles, the sheriff failed to execute the process by seizing only a part of the property — as four wheels and two axles, and in not holding the defendant to bail.

3. Although a levying officer may, under a valid levy and seizure of property, leave it where he finds it, it is nevertheless essential to the seizure of property described in the petition in a bail and trover suit that the levying officer take the' property into his own possession and assume dominion over it. A failure of the defendant in a bail and trover suit to protest against the seizure of the property, and a designation by him to the officer as to the whereabouts of the property, it being in another county, and the mere finding of the property afterwards by the officer at the place indicated, without more, and without its appearing that he took possession of the property, or took dominion over it, do not amount to a seizure of the property as required by the statute.

4. The defendant sheriff, in his answer, having admitted that when he made the original entry of seizure the boiler was not in his possession, the court did not err in disallowing an amendment offered by the defendant wherein he sought to amend the original entry of seizure by reciting that at the time of the entry the boiler was in his possession. Since the admission by the sheriff in his .answer that upon the date of the original entry of seizure he did not have the boiler in his possession, and therefore had not seized it and taken possession of it as required by the statute, amounted to an admission in judicio of this fact and to disproof of the statement in the amendment to the original entry of seizure, the amendment, if allowed, could have availed him nothing.

Decided September 27, 1928.

5. The wheels and axles do not constitute a 25-horsepower portable Erick boiler mounted on metal wheels and steel axles. The court therefore properly struck an amendment to the answer of the defendant sheriff that the seizure of the wheels and axles comprised a seizure of the entire property, consisting of the boiler mounted upon the wheels and axles, as described in the petition in trover.

6. A seizure of the property sued for in trover, when made, not in executing the bail and trover process, but by virtue of a levy more than two years afterwards under an execution issued upon the verdict and judgment for the plaintiff upon the trial of the trover suit, does not amount to a seizure of the property under the bail and trover process. ■ Such levy and seizure are not equivalent to the execution of the original process, and constitute no defense for a failure by the sheriff to hold the defendant in trover to bail.

7. While the damage sustained by the plaintiff as a result of the failure of the defendant sheriff to execute the original process upon the bail and trover proceeding may be reduced by funds derived from a sale of the ' property under a common-law levy afterwards made by the sheriff, the plaintiff’s damage in this case is not subject to such a reduction, since it appears from the answer of the defendant sheriff that the property levied on by him, when sold under the levy, failed to bring an amount sufficient to pay the costs.

8. It appearing, from the answer of the defendant sheriff, that, in executing the process issued upon the bail and trover proceeding, he failed to seize and take the 25-horsepower portable Erick boiler described in the petition in trover, and it appearing that the essential allegations in the petition, including the sheriff’s failure to hold the defendant to bail and including the plaintiff’s damage in the amount of the verdict found for the plaintiff on the trial of the trover suit, were admitted, the court properly, on the pleadings, entered judgment against the defendant for the amount of the judgment found for the plaintiff upon the trial of the trover suit. See also Houston v. Howell, 36 Ga. App. 330 (136 S. E. 474).

9. Even if §§ 5343 and 5350 of the Civil Code (1910), which provide a penalty of 20 per cent, per annum against a sheriff for withholding from the person entitled thereto, after demand, money which the sheriff has collected by virtue of his office, are applicable to this case (which is not conceded), the judgment entered against the defendant sheriff, in so far as it adjudges him due to the plaintiff 20 per cent, interest, is contrary to law, since it does not appear that any demand had ever been made upon the sheriff for the money claimed and for which judgment against him was entered. The judgment is therefore affirmed, with direction that it be amended and modified by striking therefrom so much of it as adjudges the defendant due to the plaintiff 20 per cent, interest; and all costs of the writ of error are taxed against the defendant in error.

Judgment affirmed, with direction.

Jenhins, P. J., and Bell, J., concur.

J. A. Hixon, R. G. LeSueur, R. L. LeSueur, for plaintiff in error.

Homer Beekmd, G. R. McGrory, contra.