Houser v. Houser & Bronson

43 Ga. 415 | Ga. | 1871

Warner, Judge.

This was an action brought by the plaintiff against the defendants on a promissory note for $2,350 93, payable to Houser & Bronson, orbearer, dated 1st January, 1868, and due one day after date. The defendants, W. Houser & Bronson, pleaded the general issue. On the trial of the case, it appears from the evidence of the plaintiff, who was introduced by the defendants, that the note sued on was placed in the hands of the plaintiff by Bronson, of the firm of Houser & Bronson, together with other notes and accounts, as collateral security, to secure him against loss on a note made by Houser & Bronson for $3,000 00, payable to Bryant & Wimberly, to which the plaintiff was security; that about nine months after the suit was commenced by the plaintiff against the defendants, the Bryant & Wimberly note was paid off, out of the proceeds of other collaterals, and that now plaintiff had no other interest in the note, except to account to Houser & Bronson for the same, or the proceeds thereof. The plaintiff, in rebuttal, introduced Holtzclaw, who testified that the note sued on was placed in his hands as an attorney-at-law, by the plaintiff and Bronson, of the firm of Houser & Bronson, to secure the plaintiff against loss as their security on the Bryant & Wimberly note, and it was agreed between plaintiff and Houser & Bronson that this note, with other notes, should be collected by him, and the proceeds applied to the payment, first of the note on which plaintiff was security, and the balance to be returned to Houser & Bronson, for the benefit of their creditors, the firm being insolvent; and that be brought suit on the note in the name of the plaintiff with that understanding. W. Houser, of the firm of Houser & Bronson, is a different'man from from the payee of the note, James M. Houser, of the firm of Houser & Bronson, the defendants being a farming firm, and the payees of the note a mercantile firm. Upon this evidence the Court dismissed the plaintiff’s action. In our judgment this was error. The plaintiff, at the time of the commencement of his action on the note, had the legal title thereto, and was entitled to recover a judgment thereon against the defendants, the proceeds of which, when collected, he would hold as trustee for those who were legally or equitably entitled to the same. The Court should have submitted the evidence to the jury, and charged them as to the law applicable thereto.

Let the judgment of the Court below he reversed.