15 Ga. App. 772 | Ga. Ct. App. | 1915
The Citizens Bank of Tifton brought suit against W. H. Willis and others as securities on a note dated October 20, 1909, and due January 20, 1910, given it by the Farmers Supply Company, which had failed and ceased to do business. The defendants admitted the execution of the note, but filed a plea of accord and satisfaction. The plea set up that on January 11, 1910, one of the defendants, who was also president of the Farmers Supply Company, delivered to W. L. Yeomans, cashier of the plaintiff bank, in lieu of the $3,000 note sued and another note for $2,000, two notes for $2,500 each, executed by the Farmers Supply Company to the bank and secured by a mortgage or deed to certain realty owned by the Farmers Supply Company, and notes of customers of that company, for approximately $6,000, “which were expressly accepted in lieu of the note sued upon and in lieu of the personal security of the accommodation endorsement of said defendants, and in full accord and satisfaction and extinguishment of said note sued upon.” The plea further alleged that after so accepting the last-mentioned notes in lieu of the note sued upon, the bank “caused the deed or mortgage given as security therefor to be recorded in the clerk’s office, later hypothecated and used said notes as collateral without the State, and finally . proved said two $2,500 notes in bankruptcy as a then-existing claim against said Farmers Supply Company, and later collected thereon substantial payments in dividends from the bankrupt court.” The defendants denied ever having made any payments on the note as shown by the credits. By amendment the defendants amplified their original plea and alleged an agreement on the part of the cashier of the bank to surrender the note sued upon, and alleged that he had failed and neglected to keep his promise.
W. L. Yeomans testified for the plaintiff as follows: I was cashier of the plaintiff bank, which at the time held two notes of the Farmers Supply Company, one for $3,000 and the other for $2,000, endorsed by persons connected as directors with the Farmers Supply Company, and one of which is sued on here. Frank Scarboro, who had charge of the supply company, came to the bank and proposed to take up the two notes by giving two other notes, of $2,500 each, of the Farmers Supply Company, and a third mortgage upon its buildings. I told him I could not take them myself, but would submit them to Mr. Buck, the president, and the board of directors. I did this, but Mr. Buck declined to accept them unless they would put up more collateral. I had some idea
The jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, upon the usual general grounds and upon the ground that the evidence demanded a verdict for the plaintiff. To the judgment overruling this motion the bank excepted.
1. We are of the opinion that the circumstances in evidence were sufficient to authorize the jury to infer that the bank ratified the cashier’s acceptance of certain notes and collateral in lieu of the note sued on, and in full accord and satisfaction thereof, and to rebut the presumption raised by the plaintiff’s retention of the original notes. As was said in Hamilton v. Stewart, 105 Ga. 302 (31 S. E. 184), “While, of course, a party can not be bound by a settlement unless he assents to its terms, still this assent may be implied from the circumstances, and conduct inconsistent with a refusal would raise a presumption of assent, upon which the other party would have a right to act. Nothing could be clearer than the proposition that where one person delivers to another property, to be retained upon a condition stated, the party receiving it can not retain the property and repudiate the condition.” Certainly it can not be doubted that it was the intention of the defendants, when they delivered the new notes to the plaintiff, that these notes should be received in settlement of the original notes, and especially when they later delivered to the plaintiff further collateral, which was also accepted and was retained for more than two years. Indeed, the cashier of the bank testified that the notes and collateral were delivered to the bank solely for the purpose of extinguishing the original notes. The note sued on had been past due for more than two years, and, according to the evidence, no demand had ever been made for payment prior to the filing of the suit. After the bank had for so long a period retained the old notes and had performed acts of ownership and control over the new notes, which, according to its cashier’s evidence, “were offered in satisfaction of the note sued on and for no other purpose,” and its governing body had acquiesced in the cashier’s acceptance of the new notes and the collateral, and made no attempt to repudiate the cashier’s acceptance and retention, or to notify the defendants that the notes and securities were not being held in accord and satisfaction of the orig
2, 3. One of the defendants testified that the cashier told him that he had seen Mr. Buck, the bank’s president, in regard to the matter, after the delivery of the second collateral, and that “it was all right.” From this, then, the jury were authorized to believe that the cashier, acting as agent for the bank, expressly agreed to receive the notes and collateral as furnished by the supply company, in accord and satisfaction of the note sued on. Conceding, then, that Yeomans, the cashier, even though under his own testimony he “had general charge of the bank,” was not authorized to agree to the acceptance of the settlement thus'offered, still, as said above, by the adoption of Yeomans’s acts as their acts, through failure to object thereto after his acts came to their knowledge (and they were charged with knowledge), they were bound by this express agreement on his part. Having accepted the valuable collateral which was delivered to them for a certain purpose, to wit, in satisfaction of the note sued on “and for no other purpose,” and having collected a portion thereof (as the jury were authorized to believe they had), they thus became bound by all the acts and agreements of the cashier in and about the transaction, and 'were estopped to assert the original lack of authority on his part, or to adopt a part of his acts and refute others.
Judgment affirmed.