1 Ga. App. 480 | Ga. Ct. App. | 1907
Haines brought an action in trover against Chambers, to recover a check for $82.50. Chambers defended by denying all the allegations of the plaintiff’s petition, (hi the trial the jury found in favor of the defendant. The plaintiff moved for a new trial on the statutory grounds, the motion was overruled, and by writ of error we are asked to review the judgment on the motion for new'trial. It appears, from the evidence, that one Dent swore out a distress warrant against one Guyton, and that Haines (the plaintiff in this case) signed a replevy bond as security for said Guyton, who had been distrained for $82.50. The defendant in trover was the bailiff who levied the distress warrant. It appears, that, some question having arisen as to the solvency of the replevy bond, Haines, in order to strengthen the security, gave the check which is the subject-matter of this suit. .The understanding-between Haines and the bailiff (now defendant) was that the latter was to hold the check with the bond, as a bond, until the final determination of the distress warrant between Dent and Guyton, and if Guyton lost on his defense, then he was to use the check in. settlement of the distress warrant. The property levied upon, at the time that plaintiff gave the replevy bond and the check, eon
We think that the plaintiff is entitled to a new trial, and that the overruling of his motion, under the evidence submitted, was error. This court stands unequivocally committed to the doctrine that the jury are arbiters of all issues of fact. Davis v. Kirkland, ante, 5. But when there is no evidence which, when applied to .the law pertinent to the cause, will support the verdict, this lack of evidence constitutes an error of law. Under the undisputed evidence it can not be questioned that the cheek of Haines was-de-, posited with the bailiff as a bailment. “A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust.” Civil Code, §2894. The bailee becomes, therefore, such an agent of the bailor, as that he is required not only to use the property for the special object only for which he was entrusted with it, and in conformity with the purpose of the trust, but also to act",in good faith with the bailor and his interests. The written receipt, as well as the testimonj'- of the defendant himself, showed that the check was deposited as a bond for replevin in -the matter of B. J. Dent v. Bill Guyton, distress for rent. This was the special object for which the check was entrusted to the constable, and yet, in his answer- to the rule, the constable answered that he had in his hands the sum of $82.50, without informing the court that the counter-affidavit, the
The defendant insists, however, that the certified check was not deposited with him as a bond, nor as strengthening a bond, but as a conditional payment of the distress warrant in the event that the case went in favor of the plaintiff in the distress warrant. . We find no such evidence in the record. The receipt taken at the time, as shown by theffirief of evidence, stated that the check was deposited as a bond for the replevin in the matter of B. J. Dent v. Bill Guyton, distress for rent, and that if Bill Guyton finally lost the case A. B. Chambers would have the check to indemnify him and apply it to the payment of claim for rent. This receipt, being in writing, afforded, under a well-known rule, the best evidence of contract of bailment; but, to place the matter beyond any dispute, the record gives the testimony of the defendant himself, as follows.: “I agreed [to release the property], thinking that money would be a legal bond.” There was, therefore, no evidence on the part of either this plaintiff or the defendant to contradict the purpose of the bailment, as contended for by the plaintiff, that it was to take the place of the replevin bond. When the counter-affidavit was dismissed, the plaintiff had no case, and a judgment for the plaintiff for the amount of rent claimed could not be rendered. So that if, as insisted by counsel for defendant, the' check was deposited as a conditional payment of the rent, the position of the constable would be no better than if it is assumed (as is shown by the evidence) that it was deposited to strengthen the replevin
Judgment reversed.