American National Bank v. Ward, 145 Ga. 551

American National Bank v. Ward

145 Ga. 551 | Ga. | 1916

Lumpkin, J.

(After stating the foregoing facts.)

1. There was no error in overruling the'objections to the allowance of the amendment to the defendant’s answer, or the demurrer to the answer as amended.

2. It was contended by qounsel for the plaintiff in error that Hinson could not inquire into the title of the bank to the note sued on. By the Civil Code (1910), section 4290, it is declared that the title of the holder of a note can not be inquired into, unless it is necessary for the protection of the defendant, or to let in the defense which he seeks to make. The defendant sought to protect himself against a recovery by the plaintiff, by setting up that Tanner was the real owner of the notes; that the bank was not a bona fide holder for value and without notice, but took the notes with notice of his rights; that the delivery to the bank was illegal; and that the defendant paid the notes to Tanner, the lawful owner of them. In order to set up payment to Tanner as a defense to the suit by the bank, it was necessary for the defendant to inquire into the title of the bank. Thus the case falls within the terms of the code section above cited. In Paris v. Moe, 60 Ga. 90, it was held that where a negotiable promissory note indorsed in blank is put in suit by a third person, the production of the note by the plaintiff at the trial is prima facie evidence that he acquired it for value before maturity, and without notice of any fact going to defeat its collection. It was said: "As against' him, payment made to the payee will not be a defense without showing that the payee had possession of the note at the time, or was then the owner of it, or for some other reason had a right to receive the money.” In the opinion it was said, referring to payment made to the payee: "The burden of proving his right or authority must rest on the defendants.” But no such burden could be carried without an inquiry into the title of the plaintiff, who was in physical possession of the note.

It was urged, that, Hinson having voluntarily paid the notes to Tanner before maturity, with knowledge that they were not in his possession but were in possession of the bank, and with an agreement on the part of Tanner to indemnify him if a judgment should be recovered against him, he could not inquire into the title of the bank, and that this was not for his protection, but for that of Tanner. We can not concur in this argument. Hinson testified *556that Tanner told him that the notes were held by the Brown Wagon Company, and did not say they were held by a Macon bank. Tanner testified that he had the notes, and they were with the Brown Wagon Company (or in the bank, the evidence is not clear which); that he told Hinson where they were, and that he would give a receipt against them; and that if a judgment was recovered against Hinson, he agreed to pay it. Hinson was interested in setting up the defense of payment. If a judgment should be rendered against him, it could be enforced against his property, and he would have to look to Tanner to indemnify him. The agreement with Tanner did not make Hinson a party with no interest. To give an illustration, suppose that a thief should purloin a note from the payee, that the latter should insist on payment from the maker, informing him of the fact, and agreeing to indemnify him in case he should be sued on the note and a recovery be had. If the maker should make payment to the payee, he would do so at the risk of being sued; but this would not prevent his defending against a suit on the note brought by another, by showing that the plaintiff had no title to the note, and was not a bona fide holder for value before due and without notice. He would be interested in setting up the defense and be authorized to inquire into the title of the plaintiff. The facts involved in Atkins v. Cobb, 56 Ga. 86, 88, were different from those in the present case. It was thére sought to set up that the plaintiffs took the bill on which suit was brought on speculation; and the payees were making no contest with the plaintiffs. Moreover, the defendants were allowed to defend as fully as if the bill had not been negotiated, on the ground that it had been received by the plaintiffs after maturity. Nor were the cases of Greer v. Woolfolk, 60 Ga. 623, and Haug v. Riley, 101 Ga. 372 (29 S. E. 44, 40 L. R. A. 244), like the one now under consideration.

It was further urged that a verdict for the plaintiff was demanded, because the Brown Wagon Company discounted the notes, and thereby accepted the proposition of Tanner. But the evidence did not sustain that contention. On the contrary, it showed that the wagon company declined to accept the notes without an indorsement. If after this, and with no further notice to him, the company had nevertheless sold or discounted them, it could not have bound Tanner by so doing, as by an acceptance. Perhaps *557he might have had an option to reclaim his notes, if they had not passed into the hands of an innocent purchaser without notice, or to sue for damages, or to assert that the use of the notes would bind the company in spite of its former refusal. But he has not sought to set up that the company was thus bound; nor does the evidence show that the wagon company itself, or any person authorized by it to accept Tanner’s proposal has done so.

3. In this State what is known as the uniform negotiable-instrument law has not been adopted, as it has been in many States. The rights of holders of negotiable instruments are dealt with in the Civil Code (1910), § 4286 et seq. See especially §§ 4288, 4291, on the subject of notice to a purchaser of a negotiable instrument before due, and Fidelity Trust Co. v. Mays, 142 Ca. 821 (83 S. E. 961). The general charge of the court, contained in the record, shows that it was to some extent along the line indicated in Matthews v. Poythress, 4 Ga. 287. In its entirety it was quite as favorable to the plaintiff as the plaintiff had a right to demand; and, when considered in the light of the evidence and of the charge as a whole, none of the grounds of the motion for a new trial show any cause for a^reversal. Some of the requests to charge were so worded that it would have been error to give them, even if the legal principles sought to be invoked were pertinent. In so far as they were proper, they were sufficiently covered by the general charge.

The practice of marking sentences or expressions in an opinion of the court printed in the official reports, and handing them to the trial court as requests to charge, can not be commended. If this practice were generally adopted, counsel might carry many volumes of reports into the court-house, marked here and there, sometimes at various points in a long printed opinion, and hand to the court his legal authorities thus marked, as requests to charge. It is evident that the court would often be compelled to read many pages of the book or books in order to gather the context and to ascertain whether the particular parts marked were proper to be taken from their surroundings and given in charge. In the present case one ground of the motion for a new trial assigned error because the court erred in refusing “the following request to charge, the same being set forth in a decision by the Court of Appeals, the court having been furnished with the decision, and *558the language quoted having been appropriately marked, before the jury retired to consider their verdict." (Then follows what appears to be a quotation from the decision.) Another ground is in the same form, except that a decision of the Supreme Court of Georgia is referred to, instead of one of the Court of Appeals. Even the volume and page are not mentioned, if, indeed, that would suffice. Houser v. State, 58 Ga. 78 (2).

Upon the whole case we find no cause for a reversal. As the judgment complained of in the main bill of exceptions is affirmed, the cross-bill of exceptions is dismissed.

Judgment on main bill of exceptions affirmed. Gross-bill of exceptions dismissed.

All the Justices concur.