186 Ga. 476 | Ga. | 1938
Mrs. Elizabeth L. Groover filed a trover suit against the Savannah Bank and Trust Company,- in which she prayed to recover damages for an alleged conversion of a corporate-stock certificate. To this suit the defendant filed general and special demurrers, which the court overruled, and the defendant excepted. The Court of Appeals reversed the judgment, so far as it overruled the general demurrer, and consequently did not pass upon the special demurrers. Certiorari was granted on petition of the plaintiff, and the case is now before this court. The facts of the case were fully stated by the Court of Appeals, and will not be repeated here. Eor a copy of the petition see Savannah Bank & Trust Co. v. Groover, 56 Ga. App. 27 (192 S. E. 49).
The defendant in certiorari filed a motion to dismiss the writ, on the grounds that it presents no question of public gravity and importance, and contains no sufficient assignment of error. The proper disposition of this motion is the first matter for determination. The petition for certiorari was granted partly for the purpose of considering and reconciling important rules of construction. The Court of Appeals applied the rule enunciated in the recent case of Doyal v. Russell, 183 Ga. 518 (189 S. E. 32)., to the effect that where averments are made in the alternative, and any one of them is insufficient, the entire pleading is to that extent bad in substance and subject to general attack by demurrer or motion. While the same rule had in effect been applied in previous decisions by this court (Fraser v. Smith & Kelly Co., 136 Ga. 18 (2), 70 S. E. 792; Central of Georgia Railway Co. v. Tap
While the writer dissented from the conclusion reached in the Doyal case, the rule therein stated is based upon sound reason, and may be applied in a proper case. It is but a corollary of the general principle that if a pleading is indefinite or ambiguous it must be construed most strongly against the pleader. It can not be applied, however, to the extent of sustaining a general demurrer, unless the pleading is actually alternative, nor unless one or more of the matters so pleaded is insufficient to state a cause of action, or an ingredient thereof, as the case may be. It must not be confused with the different and well-settled rule that wheré
As indicated above, the assignments of error relating to construction, and the apparent necessity of some clarification of the several rules mentioned, were regarded by this court as presenting questions of sufficient public gravity and importance to justify the grant of the writ. Central of Georgia Ry. Co. v. Tesbilc, 146 Ga. 620 (91 S. E. 873); Hicks v. Louisville & Nashville R. Co., 182 Ga. 595 (186 S. E. 662). We are still of the same view. We are also of the opinion that the petition substantially complies with the rule as to the form of assignments of error. The latter, we think, will sufficiently appear in subsequent divisions of this opinion. See Eule 45, 178 Ga. xiv. Accordingly, the petition will not be dismissed as having been improvidently granted.
The first assignment of error complains of the application of the rule as stated in the Loyal case in reference to alternative pleadings. The petitioner in certiorari asserts that the Court of Appeals erred in applying this rule, for the reason, among others, that the complaint did not set up two theories and contained no alternative or disjunctive allegations. We can not agree to this contention as related to the entire claim asserted in the petition. On the contrary, we are of the opinion that as applied to the loan of $30,000 which was made by the defendant bank to the plaintiff’s husband, the petition is alternative. We are of the further opinion, that, as to one of the two theories upon which the plaintiff relies with reference to this particular matter, the petition was insufficient to state a cause of action, and that the Court of
Upon this question, then, the pleading was clearly alternative as related to the loan, and was therefore to that extent fatally defective, if under either theory the loan should be treated as valid as between the plaintiff and the bank. If the loan was obtained in the name of the plaintiff and without her authority, the bank would not be protected; but under the facts alleged the result would be otherwise if the loan was extended to the plaintiff’s husband in his own name and behalf. The last-mentioned conclusion necessarily follows from the principle that “Where an owner has given to another such evidence of the right of selling his goods as, according to the custom of trade or the common understanding
Under the allegations, however, the bank never did advance to the plaintiff’s husband more than the sum of $30,000, or do any other act on faith of his ownership by reason of the transfer; and the allegations were sufficient to show that it is not entitled to protection beyond such transaction. On or about November 18, 1935, Eobert N. Groover presented to the bank a letter addressed to it, under that date, purporting to have been signed by the plaintiff, and reading as follows: “Kindly forward stock certificate for one hundred shares of Coca-Cola International Corporation to the company to be transferred to Eobert N. Groover, whom I am giving this stock for love and affection. Upon return of the certificate Mr. Groover will make arrangements to take care of my note at your bank.” The plaintiff alleged that this letter was a forgery. While as a forgery this'writing did not constitute any
The plaintiff further contends that the bank in finally disposing of the stock was acting as agent for her husband, and invokes the rule that an agent who assists his principal in taking the property of another without authority may be held liable in trover, although he may have acted in good faith and in ignorance of the true owner’s title. Compare Porter v. Thomas, 23 Ga. 467, 471; Miller v. Wilson, 98 Ga. 567 (25 S. E. 578, 58 Am. St. R. 319); Flannery v. Harley, 117 Ga. 483 (43 S. E. 765); Haas v. Godby, 33 Ga. App. 218 (125 S. E. 897). This rule may or may not have application where the property is quasi negotiable in character (Fulton National Banlc of Atlanta v. Moody, 51 Ga. App. 179, 179 S. E. 831, affirmed in 181 Ga. 616, 183 S. E. 548), and the principal actor has been invested with such external indicia of ownership that an innocent purchaser or lender would be protected in dealing with him. There would seem to be no valid reason why an agent should not be entitled to the same protection. For a practical distinction between different classes of property, see
The next question for determination is whether the petition showed such title or interest in the plaintiff as to authorize a trover action by her. “The common-law action of trover and conversion lay to recover damages equal to the value of the goods wrongfully withheld, but not the goods themselves. The gist of this action was the unlawful conversion. 3 Bl. Com. 152. Under our action of trover the plaintiff may elect whether he will take a verdict for the property or its value, or for damages alone, or for the property alone, and its hire, if any.” Milchell v. Georgia & Alabama Railway, 111 Ga. 760 (36 S. E. 971, 51 L. R. A. 622); Code, § 107-105. In this case the plaintiif- could not well have elected to take the property, since it appeared from the petition that the defendant had lost the power to deliver it. Absolute title is not essential to the maintenance of an action of trover. An interest less than the whole title will be sufficient where it is coupled with lawful possession or an immediate right thereto. Liptrot v. Holmes, 1 Ga. 381; Southern Railway Co. v. Strozier, 10 Ga. App. 157 (73 S. E. 42); Boswell v. Ivie, 31 Ga. App. 807 (122 S. E. 97); Livingston v. Epsten-Roberts Co.; 50 Ga. App. 25 (177 S. E. 79). In the instant case, according to the allegations, the plaintiif as against
In the seventh division of the opinion the Court of Appeals held: “The contention that even if there were a valid pledge of the stock to the bank, the plaintiff had a sufficient legal title to maintain an action of trover for its conversion, is not well taken as against the pledge, where it is not shown that the legal title did not go into the pledgee under the terms of the original pledge, and where it is not shown that the pledgee did anything it did not have a perfect legal right to do.” In paragraph 8 of the petition for certiorari it was contended that this ruling was erroneous for the following reasons: “The contention of petitioner was that if she was bound for the $30,000 loan because the proceeds of the loan were drawn out on checks signed by her and that her stock was liable to the bank for this pledge, that the bank converted her stock when it procured the transfer of the stock on the forged. letter, and in that case her damages would be reduced by the amount of the loan.” Under the foregoing principles, this assignment of error is well taken. It is unnecessary to consider in detail other assignments of error. So far as the decision and judgment under review are at variance with the foregoing rulings, they must be held erroneous. The case is therefore remanded to the Court of Appeals for further proceedings not inconsistent with this opinion. Judgment reversed.