116 Ga. 621 | Ga. | 1902
A petition was filed by Clarence L. Miller, in which the, firm of A. M. Antognoli & Company was named as de
1. The nature of these grounds has already been sufficiently in
2. A careful scrutiny of the evidence introduced on the last trial of the case has led us to the conclusion that none of the sanctity which ordinarily attaches to a second verdict in favor of the prevailing party can be claimed for that now under consideration. In fact, we are by no means clear that the trial judge would have been warranted in giving to it his approval. The defendant partnership signally failed to establish its defense that H. R. Miller, and not the plaintiff, was the real owner of the note and due-bill upon which suit was brought. Nor was there any satisfactory evidence going to show that H. R. Miller retained in his possession these papers and, as the authorized agent of the plaintiff, accepted in his behalf payments thereon. It appears that the firm of A. M. Antognoli & Company had numerous business dealings with H. R. Miller as an individual, became indebted to him in a considerable amount, and made payments to him of money on divers occasions. In no instance, however, was he directed to apply any payment to the satisfaction of the note and due-bill held by the plaintiff. On the contrary, it would seem that there was no understanding between H. R. Miller and the defendant partnership that he was to be regarded as the agent of the plaintiff with respect to the collection of either of these demands. Certain is it that the authority of H. R. Miller to thus act as the agent of the plaintiff was not made to satisfactorily appear. This being so, and there being no proof either that H. R. Miller had the above-mentioned papers in his possession at the time any payment was made to him by A. M. Antognoli & Company, or that any of the money collected by him
Judgment affirmed, both as to the main and as to the cross bill of exceptions.