112 Ga. 668 | Ga. | 1901
Wesley, as administrator de bonis non, mm testamento annexo, of the estate of Grant, instituted an action against Haynes, to recover a sum of money alleged to be due by the latter to the former. The allegations of the petition are: that John A. Grant was named in the will of the testator as his executor; that he qualified, and letters testamentary were issued to him; that subsequently he resigned his trust, and, Ms resignation havMg been properly accepted, the plamtiff was appomted admmistrator de bonis non, with 'the will annexed, of the estate of the testator; that on December 17, 1895, the defendant delivered to Grant, as executor, two checks drawn upon the Atlanta National Bank for $2,840, wMch represented money collected by the defendant as the agent of Grant, executor, and was due to him m Ms fiduciary capacity. Copies of the checks were attached to the petition. The defendant admitted that the plamtiff was administrator succeeding Grant, executor, as alleged in the petition, and the execution of the checks as alleged, denymg their consideration to have been for money collected, but averring that they were given for money loaned to him by Grant, executor. He also demurred to the petition, on the ground that it showed that, the action was for money had and received, and that it was barred by the statute of limitations; and on the further ground that the petition does not allege that the checks were ever presented for payment, or dishonored. The defendant also pleaded, subject to Ms demurrer, that, by agreement with the executor, the debt represented by the checks was to bear no interest. He also pleaded the statute of limitations; and that plamtiff had no right to recover, because if the sum was due at all it was due to John A. Grant, and not to the plamtiff. The court overruled the demurrer, and, on motion, struck the .pleas; and the defendant excepted.
The first question wMch arises is whether the action is barred by the statute of [limitations, and the answer to this question will be determined by the character of the suit and the legal obligation which rests on the drawer of a check. The petition, after describmg the checks given by the defendant to Grant, executor, as to dates, amounts, payee, and the bank on which they were drawn, alleged that the' defendant was indebted to the plamtiff m an amount wMch
But the demurrer further avers that the petition sets out no cause of action, because it does not allege that the cheeks sued on have ever been presented for payment and payment refused. To meet this demurrer, the plaintiff amended his petition and alleged that no demand was made, because the defendant informed the petitioner and his predecessor that he had no funds in the hands of the drawee with which to pay the checks, and that there were no funds in the hands of the drawee at the time said checks were drawn, belonging to the drawer or to the credit of the drawer, out of which to pay the same. The general rule, that presentation of a check and payment demanded is necessary to bind the drawer, is thus stated by Mr. Daniel (§ 1646): “A simple check which is unpaid, and has not been,presented for payment, can not be used as evidence of any indebtedness from the drawer to the' payee; . . and until demanded, the drawer is not bound.” There are, however, exceptions to this general rule, and, in order to bind the drawer at
Complaint is made that the court struck the pleas filed by the defendant. That relating to the statute of limitations has been disposed of above. The plea that the debt by agreement was not to bear interest tended to vary the terms of the written contract. Nothing of the kind was expressed in the writings, and as the writing itself spoke the terms of the contract agreed on, and constituted a liability which carried interest from date, if the circumstances alleged be true, the verbal contract entered into prior to the execution of the checks could not, of course, affect their terms. Nor is there -any merit in the averment that the money alleged to be due to the plaintiff as administrator was in fact due to John A. Grant individually. It was admitted in the answer that Grant was the duly qualified executor of the will of L. P. Grant, and that he continued as executor until March, 1900. During this time the checks were given to him as executor, and, being so payable, they subsequently came into the hands of the plaintiff as his successor in the representation of the estate of L. P. Grant. Besides, the checks having been indorsed without recourse by the payee, the defendant could not inquire into the title of the holder, except for the purpose of letting in a defense which he nowhere seeks to make.
Judgment affirmed.