Bank of Washington v. Ellington
66 Ga. 280
Ga.
1881
Check Treatment
Crawford, Justice.

The Bank of Washington had a fi. fa. against Z. D. Colley for $478.98, which was paid off by S. C. Ellington to remove the lien of the same from the land of thе defendant, upon which he held & mortgage. He paid this sum, as he alleged, upon the representations of the officers of the bank that there was that amount due, when in fact *281there was only $422.00 due, as there had been paid on their fi. fa. the sum of $56.00, which had never been entered as a credit thereon.

The facts, as shown by the record, and upon which Ellington claimеd the right to recover, were substantially, that another and younger fi. fa. in favor of Franklin & Whitney had been levied upоn three bales of Colley’s ■cotton, notice of which having been brought to the president of the bank, he said to the sheriff that if either of the fi. fas. against Colley had to take the cotton, thаt he intended to claim the money on the bank’s, and notified the sheriif to hold it up.

This notice having bеen communicated to the ‍​‌‌‌​‌‌‌‌‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​​​​​‌‌​​‍attorney ■representing the Franklin & Whitney fi. fa., he said to the •sheriff that he wоuld see the president of the bank and arrange it. On the following day two bales of the cottоn were turned over by the sheriff to Green Bros., and one to the attorney for Franklin & Whitney, as directed by ‘him; and who swears that his only reason for releasing the cotton levied on, and allowing the Green Brоs, to take two bales of it, was the information he received through the •sheriff of what the prеsident of the bank had said about claiming the money on the bank fi. fa. Several days after the cоtton had thus been disposed of, the sheriff told the president of the bank that the Green Bros, had gotten ■two bales of it, and to which he replied that he was glad of it, because they had supplied Colley with the means to make his crop.

Under the testimony and charge of the court thе verdict was for Ellington, and for $56.00. A new ^trial was • denied the bank and it excepted.

The material errors complained of are—

(1.) The want of evidence to support the verdict.
(2.*) That the court сharged the jury : If an execution ■creditor, having the older lien on a fund ‍​‌‌‌​‌‌‌‌‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​​​​​‌‌​​‍in the hands of the sheriff, allоws such fund by his consent to be applied \to a younger fi. fa., it shall be considered an extinguish*282ment pro tanto of such creditor’s lien so far as third persons may be concerned.
(3.) That if you believe from the evidence that the fi. fa. of Franklin & Whitney was levied on the cotton, and taken possession of by Crafton, the sheriff, and while it was in his possession the bank, through its president, consented that Green Brоs, should have two bales, and Franklin & Whitney one, and that was carried out, the lien of the bank fi. fa. was extinguished to the extent of the value of two bales of сotton, so far as third persons are concerned.
(4.) Because the court said to thе jury: .The issue before you is mainly one of law.

1. Upon the first ground of error assigned, which is that the verdict is without sufficient evidence to support it, we have to say that it nowhere appeаrs that any representation of the amount due upon the execution was ever made by any officer of the bank to Ellington, or by any one for it. ■ ‍​‌‌‌​‌‌‌‌‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​​​​​‌‌​​‍Neither does the evidence show thаt there was paid, as alleged in plaintiff’s declaration, $56.00, which payment had never beеn entered as a credit on said execution, nor does any fact stated .by any witness authorize a credit to be so entered. The allegations were unsupported by the proof.

Whatever might be the right to recover upon the representations alleged, when there had béen acts of the plaintiff which extinguished a part of the debt, non constat that an allegation that a payment had been made, and not entered, would give the same right.

2. The objection to the charge of the court in the second and third grounds is, that there is no testimony going to show that the bаnk ever gave its consent that any fund or property which was in the hands of the sheriff might be apрlied to the payment of the fi. fa. in favor of Franklin & Whitney, or other younger fi. fa. Nor that' it ever gave its consent through its president, or otherwise, that the Green Bros, should have the two bales of the defend*283ant Colley’s cotton, which it is allеged that the sheriff ‍​‌‌‌​‌‌‌‌‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​​​​​‌‌​​‍turned over to them after his levy thereon.

An examination of the record shоws that the president . of the bank notified the sheriff to hold .up the money; that subsequently Ellington paid off the bank fi. fa. to the sheriff, who paid it to the bank. But it does not appear from the testimony of the sheriff, Ellington, or any other witness, that there was any consent given to the disposition of the cotton by the. bank. Upon the contrary, the sheriff swears that he turned over two bales of cotton to Green Bros, as Franklin & Whitney s attorney-told him. Further, that attorney himself swears, that his only reason for releasing the cotton and allowing the Green Bros, to take two bales of it, was the information received, through the sheriff as to what the bank intended to do^ about claiming the money. Besides these facts, it appears, that the president knew nothing of the disposition of the cotton until the fact was communicated to him severаl days afterward by the sheriff. So that, taking the brief of the testimony in the record, these charges wеre unauthorized, and therefore error.

3. The last ground of error complained of is that the judge instructed the jury that the issue before them was mainly one of law.

This is not the case as it is presented to ‍​‌‌‌​‌‌‌‌‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌​​​​​‌‌​‌‌​​​​​​​‌‌​​‍this court; upon the contrary, these facts are material and controlling, and a new trial must be granted.

Judgment reversed.