1 Ga. App. 244 | Ga. Ct. App. | 1907
The plaintiff (now defendant in error) sued the defendant (who brings this writ of error as plaintiff in error), on an account, in the city court of Macon. To part of the account the defendant pleaded failure of .consideration; and no complaint is made as to so much of the verdict as relates to that portion of the alleged indebtedness. As to the other portion of plaintiff’s account, the defendant pleaded plaintiff’s failure to present within a reasonable time, and before the failure of the bank on which it was drawn, a check sent by defendant in payment of that part of the account; and the assignment of error is addressed to this portion of the account, and based on the refusal ■of the trial court to award a new trial thereon.
The third ground of the motion for new trial asserts that the verdict is contrary to law, because “the evidence showed that defendant, on the 9th day of December, 1903, sent by U. S. mail to Jorolomon Oliver & Company its check on I. C. Plant’s Son Bank for the sum of two hundred and fourteen dollars and ten cents, which said cheek was duly received by the said Jorolomon ■Oliver & Company, and accepted by it as a payment on said account. At the time defendant sent said cheek to said Jorolomon Oliver & Company, it had on deposit with said I. C. Plant’s Son Bank, subject to said check, a sufficient sum to pay the same, and continuously since said December 9th, 1903, it has on deposit with said bank a sufficient sum to pay said cheek. But so it is that said check has never been presented to said bank for payment, and on May 16th, 1904, the said I. C. Plant’s Son, Banker, became insolvent and he has since been duly adjudged a bankrupt. Wherefore defendant says it has paid upon said account the sum of two hundred and fourteen dollars and ten cents,- and defendant is entitled to have said payment credited upon the account sued on; and'by reason of the conduct of said Jorolomon Oliver & Company, defendant has been discharged from liability to the plaintiff upon said account to the extent of two hundred and fourteen dollars and ten cents.” In the fourth ground it is insisted that the court erred in directing a verdict for the amount of the check. The fifth ground of the motion complains that
The sixth ground assigns error in the following charge to the jury: “With reference to the check introduced in evidence, in the opinion of the court as to the law of the case, you will bring in a verdict in any event in favor of the plaintiff in this case for the face value of that check with interest from the date of it; because in the judgment of the court that is the law of the case and that will control you in reference to the check. So whatever your finding may be upon the other branches of the case, you will bring in a verdict in favor of the plaintiff against the defendant for the value of the check with interest from the date of the check.” The error as insisted is that plaintiff was not entitled to recover the amount of the- check as a matter of law, and the court should either have left tq the jury the question whether or not the defendant was guilty of fraud towards plaintiff sufficient to relieve the plaintiff of the duty of presenting the check, and whether or not under the circumstances plaintiff was under any necessity or duty to present the check; or should have instructed the jury as a matter of law under the undisputed facts defendant had sustained injury to the amount of the check by the failure of the plaintiff to present it.
It appears from the evidence that the defendant gave the plaintiff an order to manufacture certain shoes according to samples, the plaintiff being a shoe manufacturer and not carrying the shoes in stock. It was an entire contract. The plaintiff manufactured
The material part of the letter accompanying the check (after again complaining of the shoes) is as follows: “We again tender you a settlement of the matter. We enclose our cheek on I. C. Plant’s Son Bank for $214.10, to, pay for the portion of the bill we accepted. Bemainder of the goods to the amount of $101.40, are here subject to your order. They have not been opened since they came in the last time.” The plaintiffs had possession of this check from December until May, during which latter month the bank of I. C. Plant’s Son, on which the cheek was drawn, failed. The charge of the court on this subject amounted to the direction of a verdict, and is to be closely scanned. In every case where a verdict is directed, it is at the peril of an invasion of the right of trial by jury. For, as this court held in Davis v. Kirkland, ante, 5, to direct a verdict was originally always error, and is only sanctioned by the code where the error is harmless, because, under the evidence in that special case, no other verdict would be right or could legally be found. The whole issue then, so far as here contested, turns on the questions, (1) whether the plaintiff was bound to present the tendered check for payment? And (2) if so, did the defendants suffer such damage by reason, of the failure of'the plaintiff to present the check as would entitle the defendant to credit for the amount, as though the check had been presented and paid? It was admitted that if there was damage at all, the measure of the defendant’s damage by the non-presentation was $214.10, the amount of the check. “Had the plaintiff accepted the tender of settlement, it would have-been bound to
It is well settled that the failure to make demand within a reasonable time is at the risk of the holder; and some of the authorities go to the length of saying that the onus of showing that the drawer has sustained no loss by the delay lies on the holder. Daniels v. Kyle, 1 Ga. 304. And the charge of the trial court on this subject which was then approved, and which was certified to have been given when the case again appeared in '5 Ga. 245, was as follows: “If the defendant had on deposit in said bank money, or any effects of value, at the time of drawing said •check, and the owner thereof failed to present the same for payment within reasonable time, and the bank failed between the time
We think it was error to admit the bank ledger in evidence in this case, in the face of the timely objection made; but the burden of showing that there were funds on hand to meet the check was upon the drawer of the check, and if he does not show that there are funds subject to his check at all times after the making of the check, or some other arrangement by which payment of his check is guaranteed at any time the payee may desire to present it, he can not claim damage against a holder for unreasonable delay in presentation. Leaving out of the case the book erroneously admitted, no proof was 'adduced on that subject by the defendant, exce'pt that he had overdrawn at bank when the cheek was drawn, and may have overdrawn several times afterwards; instead of proving, as he was bound to do, by something more than mere inference, that it was the duty of the bank to pay this check whenever presented, either out of his money or by express contract to allow an overdraft. We understand the rule in Tomlin v. Thornton, 99 Ga. 585, just as, no doubt, the learned judge understood it. While the law limits the guarantee of the maker of the check as to the solvency of the bank to a reasonable time,