4 Ga. App. 245 | Ga. Ct. App. | 1908
The Marietta Fertilizer Company sued W. B. Beck-with in the county court of Newton county, on a check given by him and payable to the order of the plaintiff. A judgment for the plaintiff was entered in the county court, and an appeal was entered to the superior court. The defense made was the alleged fraudulent conduct of the agent of the plaintiff, relating to the consideration for the check; and on the trial the jury found a verdict in favor of the defendant. The plaintiff’s motion for a new trial was overruled- The material facts of the transaction may be briefly stated as follows: The check in question was given by the defendant to one Frey, agent of the plaintiff, for a promissory note made by one W. F. McCullough, payable to the order of the plaintiff. Frey was endeavoring to collect this note and others as agent of the plaintiff. On the day he sold the note to the defendant he had previously sold him several other notes for small
Frey, the agent for the plaintiff, testified, that in the afternoon, before selling the note to the defendant, he went to see Burrell McCullough, and Burrell McCullough told him that the note was not his, but was made by his son W. F. McCullough; that he tried to sell the note to Burrell McCullough, and that he then went to see W. F. McCullough about paying the note, and that W. F. McCullough told him that he had cotton and in a few days would get it ginned and pay the note, and that there was a lot of cotton lying around the gin. Frey denied that the defendant mentioned the name of Burrell McCullough to him or stated that Burrell McCullough was a good man and would pay his debts; and he denied .any fraudulent conduct on his part inducing the defendant to purchase the note, but-claimed that the transaction was entirely legal and free from any fraud, and that the defendant had full opportunity of examining the note before he bought it. It was proved by .another witness in behalf of the defendant that he had gone with Mr. Frey the afternoon before, to the house of W. F. McCullough, and that W. F. McCullough said that he would pay the note when he was able. This witness saw no cotton at W. F. McCullough’s lying around or in the field. And it was also proved that Frey had been informed by an attorney, to whom he had delivered the note on W. F. McCullough for collection, that he could not collect it.
It will thus be seen that the only -issue in the case is the one of fraud; and in this connection it may be said that this issue was fully, fairly, and accurately presented to the jury in the charge of the court, and that the assignment of error upon an excerpt from the charge on this subject, as not authorized by the facts, is entirely without any merit, as this excerpt contained statutory and well-settled definitions of both actual and constructive fraud, and
As to the transfer or sale of promissory notes, the Civil Code, §3685, declares, that “Every transferor of a negotiable instrument, whether by indorsement or delivery, warrants (unless otherwise agreed by the parties) that he is the lawful holder and has a right to sell, that the instrument is genuine, and that he has no knowledge of any fact which proves the instrument to be worthless, either by insolvency of the maker, payment, or otherwise.” And in the case of Gordon v. Irvine, 105 Ga. 144 (31 S. E. 151), the Supreme Court says, that “The holder of a promissory note who has knowledge of the insolvency of its maker is under a legal and moral obligation to impart such knowledge to an innocent purchaser before negotiating it. When he fails to do so, and the purchaser is thereby injured, an action of deceit will lie by the latter against the former.” Applying these principles of law to the facts of this case as shown by the defendant, was there evidence sufficient for the jury to find in favor of the defendant on his plea of fraud? Did the agent of the plaintiff, at the time he sold the note to the
Did not the language of the agent induce the defendant to believe that Burrell McCullough had made this note? Did hot he almost expressly declare, according to the testimony of the defendant, that it was the note of Burrell McCullough? For in reply to the statement of the defendant that if Burrell McCullough made the note, there was no trouble about it and he would take it, the agent said, “He acknowledges it.” Besides, in stating that' the Mr. McCullough who made the note lived “two or three miles down the road,” when he knew (because he had been to Burrell McCullough’s house the afternoon before) that it was Burrell McCullough who lived there, and also knew that W. F. McCullough did not live two or three miles down the road, but “six miles in a different direction” (for he had also been to W. F. McCullough’s house the afternoon before), was he not inferentially misstating the facts, for the purpose of keeping the defendant in ignorance of the truth ? ■ Did not this language of the agent of the plaintiff tend to divert the attention of the. defendant from the critical examination of the signature of the note; and was it not obviously intended to prevent such examination, and to allay any suspicion which the defendant had as to who was the maker of the note? These parties were dealing at arm’s length, it is true, and if the defendant failed to discover whose name was signed to the note, or made a mistake wholly by his own negligence, unmixed with any deceitful artifice or conduct contributing to such failure or mistake by the agent of the plaintiff, it has been held that he would have no right to complain of the result of his own negli
On this question of the negligence of the defendant in not discovering the real signature to the note, the question of the emergency created by the agent of the plaintiff, in his hurry to take the train, may also be considered, according to several decisions of the Supreme Court. Boynton v. McDaniel, 97 Ga. 400 (23 S. E. 824); Jossey v. G. S. & F. Ry. Co., 109 Ga. 439 (34 S. E. 664); Angier v. Eq. B. & L. Asso., 109 Ga. 625 (35 S. E. 64); and especially Wood v. Cincinnati Safe Co., supra.
In addition to the testimony above quoted, which we think fully authorized the verdict of the jury, it should not be forgotten that the testimony also ’ discloses an effort, on the part of the agent of the plaintiff, to mislead the defendant as to the ability of the maker of the note to pay it. He told the defendant that the maker of the note had cotton around his gin-house, and had promised to sell it and pay the note in a few days, while, another witness testifies, the maker of the note had no cotton, and had simply promised to pay the note when he was able to do so. _ The agent was under no obligation to speak on this subject, but if'he spoke, he was under obligation to speak the facts.
After carefully considering all the evidence in the record, in the light of the authorities and decisions cited, we have come to the conclusion that the verdict of the jury was right, and that the judgment refusing a new trial should not be disturbed.
Judgment affirmed.