101 Ga. 104 | Ga. | 1897
The Bank of the University brought suit in the city court of Clarke county against W. R. Tuck, upon a promissory note executed by him on the 20th day of January, 1892, in favor of the Reaves Warehouse Company or order, for $2,200.00, besides interest, costs and attorney’s fees which might be incurred in collecting the same; which note had been endorsed to it by the Reaves Warehouse Company, the payee.
Among other matters set up in his plea, which matters it will not be necessary for the purposes of the present discussion to consider, the defendant filed a plea of payment. He alleged that the note sued upon had been fully paid off and discharged in consequence of payments made by him to the Reaves Warehouse Company, the original payee, upon specified dates, of sums specified, aggregating in-amount the entire principal and interest due on the note. The defendant alleged further, that the Reaves Warehouse Company was the agent of the plaintiff, and was duly authorized to receive and collect said moneys and as such agent did collect and receive the same. ' The defendant, having assumed the burden of proof, proceeded to introduce evidence in support of his plea. The evidence introduced by him was, in substance, as follows.
Wm. R. Tuck, the defendant, himself testified : I gave this note (the note sued on) to the Reaves Warehouse Company. I paid the note to the Reaves Warehouse Company, commencing to pay in the fall after I gave it, and finished in Aug., 1893. The dates of the payments were as follows : Oct. 15, 1892, $552.02 ; Nov. 3, 1892, $215.42; Nov. 4, 1892, $55.00; Nov. 13, 1892,
W. T. Bryan, sworn for the defense, testified : I was bookkeeper for the Reaves Warehouse Company from 1889 to their failure on April 14, 1894. During this time the company borrowed money from the Bank of the University, deposited money there, and drew checks on the bank. Some of the money borrowed was secured by transfers of notes of different parties, held by the company. The company endorsed such notes and delivered them to the bank as collateral security. Transactions of this sort didn’t occur every year. I can not say what amount of notes was thus transferred during the whole time I was bookkeeper. Referring to a paper (mentioned afterwards) he said there was $27,473.22 in this lot. There were others, but I don’t remember the amounts — may be $50,000.00, more or less. — The defendant here introduced papers, copies of which,
W. D. O’Farrell, for the defense, said : I am one of the firm of the Reaves Warehouse Company. It had dealings with the bank since its organization, about eight years before failure. The dealings between the bank and the company were as follows : The company would take a note from one of its customers; all such notes were the property of the company. When the company was overchecked, the bank would call on them for some notes to make a showing to the directors. We then deposited notes at the request of the president of the bank, as a matter of accommodation to the bank. We knew when a note was due. If a customer came in to take up his note, we had the bills-receivable account to show him and the note was paid to the Reaves Warehouse Company. We frequently had collateral notes there to amount of $50,000 or more. I. am certain we were never called upon to pay any of these collateral notes. They were taken up at intervals as the company saw fit; the company was never urged by the bank on these notes, nor any one giving them. The company collected such notes; the bank never did. I have no reason to doubt that the bank knew that the company was collecting these notes; for on several occasions I have gone to the bank and withdrawn them, not to return them or to pay them, but stating that I wanted them for collection. My recollection is Mr. Hull would make a note of the matter and attach it to the papers. The bank never demanded payment of the company of any such notes. They would stay in the bank sometimes a year or- a year and a half. The bank never said anything to us about collecting these notes ; the company collected them whether due or. not. The bank never called on us for any money collected on these notes. The collateral notes were taken out at intervals as the warehouse company saw fit.' The bank collected none of these notes of the
Athens, Ga., May 12, 1888.
For value received, we hereby transfer to A. L. Hull, cashier, the following notes:
J. W. Jarrell, . . . Dated Mch. 30, ’88, due Nov. 1, ’88, §1,946.34
E. A. Barnett, . . . “ Apr. 13, “ “ “ 15, “ 1,000.
McGaughey, Jenkins \ and McGaughey, J 17, “ 2,000.
Malsby & Avery, . . “ “ 25, “ 600.
J. R. Boswell & Son, . “ “ 21, “ 1,004.55
Thos. E. Fortson, . . “ 1,986.96
James E. Randolph, . “ “ 18, “ 938.
McMahan & Wilkins, “ • “ 19, “ 500.
Malsby & Avery, . . “ “ 9, “ 1,000.
Jesse White, . . . “ ' “ 10, “ 500.
W. M. & II. A. Hays, “ Feb. 23, “ 436.07
Hugo Phillips, . . . “ 1,000. Apr. 26, “ “ “ “
R. M. McAlpin & Co., “ 4,572.70
J. M. Callan, . . . “ 959.44
Plantón & O’Kelly, . “ 1,000.
Jno. W. Semour, . . May 4, “ 961.22
Comer & Carr, . . . “ 1, “ “ Dec. 1, “ 3,500.
R. B. Burgess, . . . “ “ Oct. 15, “ 303.93
“ “ Nov. 1, “ 303.93
“ “ Dec. 15. “ 303.94
The foregoing notes are deposited with the Bank of the University as collateral security for any and all indebtedness to said bank by the Reaves Warehouse Company.
May 12th, 1888. Reaves Warehouse Company.
W. D. O’Farrell.
Substituted for above:
Iiunnsells, Power & Co.,..............§8,000.
Irwin, Callan & Co.,................ 2,500.
W. A. Quillian & Co.,............... 2,000.
Comer & Carr,..................6,351.12
McMahan & Wilkins,............... 2,000.
E. S. O’Brien,.................. 1,800.
“ ................... 1,800.
“ ................... 1,800.
26,251.12
Reaves Warehouse Company.
D. Jankower.
The words “ taken out ” were written opposite the names of McGaughey, Jenkins & McGaughey, Malsby & Avery, J. R. Boswell & Sons, Malsby & Avery, Hugo Phillips and R. B. Burgess, in the handwriting of A. L. Hull, cashier, and in pencil.
For and in consideration of advances made us by the Bank of the University, we hereby transfer to A. L. Hull, cashier, the following notes as security :
W. R. Tuck,
J. G. McRee,
J. W. Spratling, W. B. Power & \ H. O. Williford, / Reaves & Carlton,
Dated Jan. 2/92, payable Nov. 1/92, $2,200.
“ Dec. 26/91, “ “ “ 1,263.76,
“ Mch. 15/92, “ “ “ 676.13,
“ Dec. 3/91, “ “ “ 7,333.33,
“ Feb. 23/92, “ Oct. 1/92, 8,000.
“ “ “ “ “ Nov. “ 8,000.
int. jdcL 8%
Witnessed by R. K. Reaves,
W. T. Bryan, For Reaves Warehouse Company.
Notary Public, C. C., Ga.
May 12th, 1892, received of A. L. Hull, cashier, note of J. W. Spratling, $676.13.
Reaves Warehouse Company, By W. T. Bryan.
On the back of statement of transfer appears this :
Dec. 30, 1892, received of A. L. Hull, cashier, J. L. McRee note for $1,263.76. Reaves W. H. Co., By W. T. Bryan.
There was a verdict for the defendant. The plaintiff made a motion for a new trial, which being overruled, it sued out a writ of certiorari, which being in turn overruled, it excepted.
The proposition announced in the first headnote which precedes this opinion is so well established that it may almost be said to be axiomatic. We therefore neither undertake to discuss it, nor to cite any of the innumerable authorities which might be quoted in support of it. Indeed, the entire case, including the proposition above referred to, was practically decided and settled by the decision of this court in this case when, it was here for review upon a former writ of error. (See 96 Ga. 456.)
The whole question of the defendant’s liability to the plaintiff depends upon whether the Reaves Warehouse Company was the agent of the bank, either express or implied. It being a pledgee for value of the note, and the money having confessedly not been paid to it, but to the original payee, it follows that to excuse the maker from liability to the pledgee, he is bound to prove the agency of the person to whom he paid the money, and the competency of that person for and on 'behalf of the bank to receive it.
There was no evidence at all that the payee of the note was given express authority by the bank for and on its behalf to
Judgment reversed.