84 Ga. 403 | Ga. | 1890
Myrick & Bowman were indebted to Gordon by book account, and Gordon was indebted to English & Co. also by account. Gordon turned over to English & Co. his books and papers for them to ascertain therefrom the amount which Myrick & Bowman owed him, with a view to their collecting the same and applying the money when collected to their account against him, Gordon. The amount being thus ascertained and fixed at six hundred and sixty-five dollars, Gordon signed a hill of exchange on Myrick & Bowman for that sum, payable at sight to the order of I. C. Plant & Son, and
1. The bill on its face was an ordinary bill of exchange, negotiable as commercial paper, based on the general credit of the drawer, not upon any particular fund. According to all the authorities, it would not operate as a legal assignment of the account owing by My rick & Bowman, the drawees, to Gordon, the drawer. And according to the decided preponderance of authority, it would not operate as even an equitable assignment of that account. 1 Am. & Eng. Enc. Law, p. 836; 6 Id. p. 657, 658; 1 Daniel Neg. Inst. §19 et seq.; Tiedeman on Com. Paper, §5 et seq.; 2 Randolph on Com. Paper, §589; 1 Parsons on Bills and Notes, p. 331 et seq.; 1 Edwards on Bills and Notes, §531, 532 ; Whitney v. Bank, 137 Mass. 351.
2. There may be cases (see Daniel v. Tarver, 70 Ga. 203) in which the doctrine of equitable assignment would still have application, notwithstanding the code furnishes the means by which to accomplish a legal assignment without any aid from equitable principles. But we think the case of making preferences by a debtor between his existing creditors is not one of them. The code, §1953, provides that “ A debtor may prefer one creditor to another, and to that end he may bona fide give a lien by mortgage or other legal means, or he may sell in payment of the debt, or he may transfer negotiable papers as collateral security, the surplus in such cases not being reserved for his own benefit or that of any other favored creditor, to the exclusion of other creditors.” He may sell an account in payment of his debt, or he may transfer negotiable papers as collateral security. But an account, not being
There are authorities to the effect that such a bill, notwithstanding its negotiable element, may be used in connection with extrinsic evidence manifesting the intent of the parties, to establish an equitable assignment. The case of Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83, was urged upon us in argument as a decisive authority in favor of resorting to extrinsic evidence, but in the report it appears that all the evidence considered was in writing. Moreover, whether the draft involved in that case was negotiable is not stated, and according to what was said by the New York Court of Appeals in Evansville National Bank v. Kaufman, 93 N. Y. 280, the word “draft” does not necessarily or even usually imply negotiability. The whole doctrine of equitable assignment of choses in action grew up in consequence of the fact that, as to many of them, there could be no other sort of assignment. See Spain v. Hamilton, 1 Wall. 604, cited in Lacliede Bank v. Schuler, 120 U. S. 516. This reason, since the adoption of the code, no longer applies in Georgia. For, by section 2244, all choses in action arising upon contract are assignable so as to vest the title in the assignee. With us, therefore, where the parties really intend an assign-
3. We think the drawing and delivery of the bill and the presenting of it for payment constituted no assignment, legal or equitable, of the debt owing by Myrick & Bowman to Gordon. And as Myrick & Bowman failed to accept the bill in writing, and thereby to create a legal obligation upon them to pay it in whole or in part, their willingness to pay, coupled with a parol promise to do so to the extent of their real indebtedness to Gordon, had no legal efficacy whatever. Luff v. Pope, 5 Hill, 413 ; affirmed in 7 Hill, 577; Dolsen v. Brown, 13 La. An. 551; Kimball v. Donald, 20 Mo. 577. Bronson, L, said, in Luff v. Pope, 5 Hill supra: “ To give a parol promise to pay the effect of a written acceptance of a bill, would be no better than a device to get around the statute and defeat all the valuable ends which it was designed to accomplish.” This seems to us a sound view of the subject. All the mischiefs of a parol acceptance which the legislature designed to cut off by requiring written evidence of acceptance, would attach to oral promises like the one under consideration. Indeed, what was the promise made by Myrick & Bowman but a qualified acceptance of the bill in parol ? The case-of Griffin v. Weatherby, L. R., 3 Q. B., 753, may be at variance with this doctrine, but although in that case the bill was not accepted as the statute required to render acceptance obligatory, yet the promise of the drawee was established by written correspondence. Perhaps, therefore, the ruling in that case could be upheld consistently with the principles of our law.
'The court erred in not granting a new trial.
Judgment reversed.