121 Ga. 527 | Ga. | 1904
During the cotton season of 1896, Bullard Brothers, a firm doing business at Machen, Ga., engaged in buying cotton on commission. Under an arrangement made with J. D. Tweedy, a cotton buyer of Madison, Ga., Bullard Brothers shipped cotton to him, receiving a commission of twenty-five cents per bale. It was customary for that firm to pay for cotton purchased by it with a draft drawn on Tweedy* in favor of the seller, and for Tweedy to honor the draft as soon as he received the cotton or a bill of lading therefor. At the beginning of tire season, Bullard Brothers took out bills of lading in the name of the firm as consignor, but later adopted the course of having them made out in the name of Tweedy as consignor, as well as consignee. On receiving a bill of lading covering a particular shipment, Tweedy would go to the Bank of Madison and indorse and surrender to it the bill of lading, afterwards substituting therefor another bill of lading covering a shipment of cotton to one of his customers, which the bank would attach to a draft drawn on such customer for the amount of the purchase-price he had agreed to pay. In this way the Bank of Madison, which made advances to Tweedy on the security of the bills of lading indorsed to it, placed itself in a position where it could pay for Tweedy drafts drawn on him by Bullard Brothers and other parties making sales to him. Near the close of the cotton season, Tweedy became involved; the bank declined to make further advances to him; and a number of drafts which had been drawn on him by Bullard Brothers, and which the holders had sent to the bank for collection, were either protested for non-payment or returned by the bank with the statement that the same could not be collected. Subsequently Bullard Brothers were compelled to settle with the holders of these drafts. The purpose of this suit was to require the bank to refund to Bullard Brothers the amount so expended. As showing the liability of the bank, the following allegations were made in the plaintiffs’ petition: The drafts were received
At the trial of the case the plaintiffs offered an amendment to the petition, which the court allowed over the objection of the defendant. In this amendment the following additional allegations were made: The change in the mode of shipping cotton to Tweedy, whereby bills of lading were taken out in his name as consignor instead of in the name of Bullard Brothers, was made at the instance of the bank and upon the faith of its statement that it “was paying for Tweedy’s cotton” and could not protect Bullard Brothers unless the cotton was shipped as directed, but could and would protect that firm provided its shipping directions were complied with. Bullard Brothers relied on this promise and undertaking on the part of the bank and shipped cotton to Tweedy accordingly, looking to the bank to protect the firm in its cotton dealings with Tweedy. In view of this promise and undertaking, the cotton shipped to Tweedy “ was quasi-trust cotton,” and the bank was under legal obligation to pay drafts drawn on him for the purchase-price thereof, and could not appropriate the • cotton or the proceeds thereof to other indebtedness of Tweedy. The legal effect of the bank’s undertaking was “ to make it, as far as petitioner’s cotton was concerned, Tweedy’s paymaster or trustee,” and the bank was “in good conscience and law obliged to appropriate the money arising from the sale of cotton shipped said Tweedy by” Bullard Brothers to drafts which that firm drew on him for the purchase-price, and could not,
A trial was had on the merits, the defendant bank having by its answer denied all liability to respond to the plaintiffs. In view of the evidence submitted' pro and con, the court declined to leave to the determination of the jury any issue save as to the liability of the defendant with respect to its dishonor of the Huntington draft, drawn on Tweedy by;Bullard Brothers in payment of the Deiter cotton, which the plaintiffs claimed the bank had, on December 11, expressly agreed to pay on presentation. The jury decided this issue in favor of the bank. The plaintiffs made a motion for a new trial, therein complaining of the refusal of the court to submit other issues to the. jury, and assigning error upon certain portions of the charge of the court. The motion for a new trial was overruled, and the plaintiffs excepted. A cross-bill of exceptions, in which complaint was made of the allowance of the first amendment to the petition, was thereupon sued out by the defendant bank, which also therein assigned error on the overruling of a demurrer it had made to the petition as amended. As we have reached the conclusion that the judgment denying the motion for a new trial should be affirmed, it is unnecessary to further deal with the cross-bill of exceptions. The record before us discloses the following facts: The president of the bank informed one, if not both, of the members of the firm of Bullard Brothers that the only way in which that firm could.,protect itself in its dealings with Tweedy was to follow the usual custom of attaching to drafts drawn on him the bills of lading representing the cotton ’ shipped to him. The reply received was to the-effect that Bullard Brothers could not adopt this course, as it was necessary for Tweedy to control the cotton and.resell it to his customers before actual payment, by substituting for the bills of lading sent to him by Bullard Brothers other bills of lading which he could attach to drafts drawn on such customers. At. the beginning of the season, Bullard Brothers took out bills of lading in the
As to whether or not the cashier of the defendant bank really agreed to pay the Huntington draft on presentation, the evidence
Judgment on main bill of exceptions affirmed-, cross-bill of exceptions dismissed.