21 Ga. App. 624 | Ga. Ct. App. | 1918
This was a suit on a promissory note which was :.n the following form:
“$214.60. Atlanta, Ga. October 5th, 1914. Sixty days after date I promise to pay to the order of T. F. Goodwyn & Co. two hundred fourteen & 60/100 dollars, at Atlanta National Bank, at Atlanta, Ga., for value received, with interest after maturity until paid at eight per cent, per annum, with all cost of collection, including ten per cent, as attorney’s fees, if collected by law or through an attorney at law. Each of us, whether principal, security, guar*626 autor, endorser, or other party hereto, severally waives and renounces each for himself and. family any and all homestead or exemption rights either of us or the family of either of .us may have under or by virtue of the constitution or laws of Georgia, or any other State or the United States, as against this debt or any renewal thereof; and each further waives demand, protest- and notice of demand, protest, and non-payment. Given under the hand and seal of each party. Due-.
“D. J. Bateman (L. S.) Address; Gordon, Ga.”
(Indorsed) “Pay to the order of the Atlanta National Bank. T. P. Goodwyn •& Co. T. F. Goodwyn & Co.”
The note as signed by the defendant was mainly printed, but certain portions of the original form were left blank for the purpose' of supplying names, dates, and amounts. These had been filled out before the note was taken by the holder who brought the suit, and there was nothing then to indicate to the taker that it differed in any way from what its condition was when signed. There was no alteration of any of the expressed terms of the instrument. The case was submitted to the judge on an agreed statement of facts, from which it appears: “The defendant about the first of October, 1914, went to Atlanta, Georgia, for the purpose of collecting about $700 that Goodwyn & Co. owed him. Goodwyn told the defendant that he did not have, the money, but could get it if he would sign a note, and he would take it to the bank and get it discounted and give him the money. The defendant then signed the note sued upon in blank. When the defendant signed the note there was nothing but the printed matter on the note, the blanks being filled after he signed the same. After he signed the note, as above stated, in blank, he decided not to deliver the same. Goodwyn then snatched the note up and put it in his safe; he requested him to give the note back to him, and he refused to do this. The bookkeeper locked the note in the safe and he could not get it. The defendant did not deliver the note, and never intended the note to be filled out, and did not authorize any one to fill out the blanks, and never received a cent of the money, and Goodwyn & Co. still owe him.” “The Atlanta National Bank is a bona fide holder for value before due.” From the evidence it appears that the note remained in the hands of Goodwyn & Co. for a period of about five days.'
We thoroughly agree with the opinion held by the trial judge that it does not follow as a matter of law that a bona fide holder of a^negotiable note is necessarily protected, in his title where it appears that such instrument has never been actually delivered, and that it was materially incomplete when feloniously taken from the maker. .Under such circumstances the maker is prima facie not liable. Indeed, the so-called "uniform negotiable instrument law,” now of force in many of the jurisdictions of the country, specifically provides that "Where an incomplete instrument has not been delivered, it will not, if completed and negotiated without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.” Crawford’s Annotated Negotiable Instruments Law, 42, § 15. But, under our view of the law, neither would it do to hold that the signer in blank of a negotiable promise to pay could in all eases and under all circumstances claim exemption from liability on such an instrument signed by him as against an innocent taker for value. Our opinion of the law, as expressed in the fourth headnote, is such as to raise in this case a question of fact as to whether or not the evidence shows that the defendant was ' guilty of such negligence in allowing the note to get into circulation as would furnish the proximate cause of the fraud and would operate to estop him from denying actual delivery. .The decision in the case of Linick v. Nutting, 140 App. Div. 265 (125 N. Y. Supp. 93), was rendered-in accordance with the terms of the negotiable instrument law of force in.New York, which contains the provision above quoted. In that case it was held that “The rule that a bona fide holder of an incomplete instrument, negotiable but for some lack capable of being supplied, has implied authority to supply the omission, and to hold the maker thereon, ap
In the English ease of Baxendale v. Bennett, L. E. 3 Q. B. Div. 525, dealing with a suit on an instrument stolen when incomplete, the opinion of the court sustaining the plea of the maker is based upon the theory that if the defendant was guilty of any negligence at all, it did not constitute the proximate and effective cause of the fraud, such as would estop the signer from denying delivery. In the case of Burson v. Huntington, 21 Mich. 416 (4 Am. R. 497), the pertinency of the question of such negligence was recognized, and in the opinion in that case the court said: “There may be cases where the culpable negligence or recklessness of the maker in allowing an undelivered note to get into circulation might justly estop him from setting up non-delivery, as if he were knowingly to throw it into the street, or otherwise leave it accessible to the public, with no person to guard against its abduction under circumstances when he might reasonably apprehend that it would be likely to be taken.” Thus, even under the rule of the negotiable instrument law containing the provision which we have quoted, apparently comprehensive in scope and intent, we find that the courts have not failed to take into account that the principle of negligence may be involved. A signer in blank of a negotiable instrument, even though undelivered, should not under all circumstances and conditions be permitted as a matter of law to shut his eyes to the known peril imposed upon the public by the felonious taking of such an instrument signed by him when it might be that under the facts of the particular ease it lay within his reasonable power and within his power alone to afford protection.
The judgment in this case being based entirely upon the holding that as a matter of law the defendant is not liable on the instru-ment, for the reason that the note had never been completed-or delivered by defendant, and there being no finding upon the question as to whether, under the evidence, the proximate cause of the fraud lay in the felonious taking of the instrument, or whether it was occasioned, by negligence on the part of the signer in permitting it to get into circulation when it was within his reasonable power to prevent it, this court will not pass upon that question as an original proposition, but remands the case in order that a
Judgment reversed.
