Cross v. Johnson

| Ga. | Sep 15, 1880

Jackson, Chief Justice.

This suit was brought on an open account by J. C. Johnson, for the use of Davis & Marks, against A. S. Cross. Johnson sold the goods to one Felder, and on written authority or letter of credit from Cross, the defendant, charged the account to him. Afterwards he transferred it to Davis & Marks, and the suit is brought in his name for their use. The jury found for the plaintiff, the court having refused to grant a.non-suit on motion of defendant, and error is assigned on the admission of certain testimony to the jury and on the refusal to award the non-suit.

1. One ground for the motion to non-suit the plaintiff is, that the account was not transferable, and suit could not be brought by the real owners thereof. The answer is, that the legal title remained in Johnson, who could sue and did sue. It made no difference that he sued for the use of Davis & Marks. Such has been the practice time out of mind, and it is well settled law. 1 Kelly, 236; 25 Ga., 400; 26 Ib., 395.

The defendant had no right to inquire as to the title of plaintiff, not being hurt by the equitable transfer. If he had paid Johnson, or had any equity against him, it could have been set up. 21 Ga., 583. The words “for the use,” etc., are merely surplusage or descriptio persona. 40 Ga., 217.

2. The letter of credit was introduced to show that Johnson had the right to charge the account to Cross, which he did do, and gave him credit, and not Felder. It said, substantially, in writing : Let this man have these goods and charge to me, and was an original promise to pay, and not within the statute of frauds. The original letter being lost, it was competent to introduce copy, or go into parol to show this authority; and there was no necessity of establishing a copy by separate proceeding. The copy, or contents, was proven by abundant evidence, including that of a subscribing witness.

Judgment affirmed.