32 Ga. App. 319 | Ga. Ct. App. | 1924
(After stating the foregoing facts.)
To the statement of facts and the headnotes we will add only the following:
This case was submitted to an auditor “to investigate the same and pass upon all questions of law not heretofore passed upon and all facts arising therein in accordance with the law in such cases made and provided.” (Italics ours.) The law “in such cases made and provided” is found in § 5129 of the Civil Code of 1910, and is as follows: “In all cases, unless modified by the order of appointment, in addition to the matter specially referred the auditor shall have’ power to hear demurrers, allow amendments, and pass upon all questions of law and fact.” This court is clearly of the opinion that under the terms of the submission, such as in this ease, as well as under the law itself, it is the right of the auditor to grant a nonsuit in all cases where “the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover.” Civil Code (1910), § 5942.
This court is also of the opinion that the evidence in this case is ample to support the findings of the auditor “that the officers of the Avera Loan & Investment Company had knowledge of acts indicating dishonesty on the part of George Beverly Walker before the bond was renewed for the period in which the liability
A contract between principal and agent for the handling of money, especially when that agent is an attorney at law, should be carried out in the strictest good faith and on principles of absolute honesty. Any unauthorized use of the funds of the principal by the agent for his personal benefit for any length of time, however short, even if with the idea that the money will be returned, is a violation of his obligation to his principal. In Orr v. State, 6 Ga. App. 629 (65 S. E. 582), Judge Russell said: “The defendant was convicted of embezzlement. His alleged criminal transactions ran through a long number of years. There are several instances clearly proved by the testimony, and not satisfactorily explained by the defendant, in which he took and used, for his own purposes, and in an unwarranted manner, money belonging to the bank. The defendant probably expected when he used this money that he would repay it (and it may be that the jury was authorized to find that after the defendant severed his connection with the bank he did repay it by means of a settlement made); but, legally speak
Did Walker make prompt and “'honest remittance of all funds less his fees collected by him?” Let it be carried in mind that the bond sued on was given in 1914, and had endorsed thereon. “This bond is continuous in form and remains in effect for an indefinite period by payment of premium when due.” The
The foregoing shows that this court is of the opinion that the judge of the superior court properly refused to recommit the case to the auditor, that he did not err in overruling the exceptions either of law or of fact, and that he properly granted a nonsuit in favor of the National Surety Company.
The nonsuit as to Walker was properly granted. Evidently it was the intention of the plaintiff to sue on the bond alone-; and, as there is in the bond no covenant or promise of liability of Walker to the Avera Company, a recovery on the bond could not be sustained. This construction of the petition is borne out by the fact that the amount of recovery sought is the exact amount of the penal sum named in the bond, whereas the total loss alleged in the petition is considerably in excess of this amount. In addition the allegations in the petition are not sufficient to support an action for fraud and deceit or for money had and received.
(a) The judge properly taxed the auditor’s fee against the Avera Loan & Investment Company. Civil Code (1910), § 5980. See also §§ 5148, 5423; Moore v. Dickenson, 117 Ga. 887 (45 S. E. 241); Fitzpatrick v. McGregor, 133 Ga. 344 (4) (65 S. E. 859, 25 L. R. A. (N. S.) 50).
(6) The word “involving,” as used in this statute, means the ' amount for which suit is brought. In this case this is $4,000 principal, interest thereon, $1,000 damages, and $1,000 attorney’s fees. Should counsel and auditor think the statute does not make a
Judgment affirmed with direction.