40 Ga. App. 563 | Ga. Ct. App. | 1929
1. “ Cotton . . or other products sold by planters or commission merchants, on cash sale, shall not be considered as the property of the buyer until fully paid for, although it may have been delivered to the buyer.” Civil Code (1910), § 4136. Bank checks are not payment until themselves paid. Civil Code (1910), § 4314; Manget v. National City Bank, 168 Ga. 876 (2) (149 S. E. 213). Thus, in the absence of an agreement to the contrary, where there is a cash sale of cotton by a planter and he receives a check for the purchase-price, the title to the cotton does not pass until payment of the cheek, and on the check’s being dishonored he may recover the property in trover from one buying it from the purchaser, even though the person thus buying it may have no knowledge of the title reserved in the seller by operation of the statute. Flannery v. Harley, 117 Ga. 483 (43 S. E. 765).
3. As a general rule, where the holder of a bank check neglects to present it for payment within a reasonable time, and the bank fails, the drawer is discharged from liability to the extent of the injury he has sustained by such failure. Comer v. Dufour, 95 Ga. 376 (22 S. E. 543, 30 L. R. A. 300, 51 Am. St. R. 89). But “the drawer of a check is not absolved from liability thereon because
3. In the instant case it is shown by the defendants’ pleadings that the purchaser of the cotton from the plaintiff had an arrangement with a certain bank to finance his cotton purchases, the plan being that he would purchase the cotton, taking the warehouse receipts therefor, and give his checks drawn on the bank for the purchase-money; that he would then deliver the warehouse receipts to the bank as collateral for the money advanced, the bank in the meantime cashing the checks given for the cotton purchased; that after accumulating a number of bales of cotton in this way, the bank would deliver the cotton warehouse receipts to the purchaser, taking his trust receipt therefor, and such cotton would then be sold and the money received from the sale delivered to the bank, in whole or in part, to the extent of the amount of money advanced to the purchaser. In the instant ease the plaintiff seller, instead of presenting promptly the. check given him for his cotton, held it until after the purchaser of the bank had sold the cotton and applied the money received therefor to the purchaser’s indebtedness to the bank, so that when the check was finally presented for payment the bank claimed that the purchaser had no funds on deposit with it to pay the check, it is alleged that had the .check been presented promptly, or within a reasonable time, after its receipt from the purchaser, it would have been paid by the bank, either under the
4. “Where the defendant is in possession of property sued for at the time of the institution of a suit in trover, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property.” Pearson v. Jones, 18 Ga. App. 448 (89 S. E. 536). In the instant case the averment of the petition that the defendant was in possession of the property was not denied, but it was admitted that the “same came into its possession.” Therefore it was not necessary for the plaintiff to prove a demand and refusal to deliver.
5. The evidence as to the value of the property is undisputed, and the court, under the foregoing rulings, properly struck the defendant’s plea and directed a verdict for the plaintiff.
Judgment affirmed.