173 Ga. 746 | Ga. | 1931
This case is in this court upon the grant of certiorari to review a judgment of the Court of Appeals. The facts upon which this judgment rests are clearly and fully set out in the report of the decision of the Court of Appeals. 42 Ga. App. 303 (155 S. E. 799). It is alleged that the Court of Appeals erred in affirming the judgment-of the trial judge overruling the demurrer of the garnishees to the traverse of their answer, and erred in the rulings stated in 'the second and third divisions of its opinion.
We deal first with the assignment of error upon the ruling set out in the second division of the opinion of the Court of Appeals. That ruling is that “where a summons of garnishment has been served upon the voluntary sender of an ordinary check before it has left the post-office where mailed, and when the sender, under the postal regulations, has the right to withdraw and could have withdrawn it from the mails, the debt represented by the check is subject to the garnishment process.” This ruling is a reiteration of the ruling by the Court of Appeals in Watt-Harley-Holmes Hardware Co. v. Day, 1 Ga. App. 646 (57 S. E. 1033).
It is well settled in this State that an unaccepted check drawn in the usual form, not upon any particular fund, or not using words indicating a transfer of the whole or any part of the amount standing to the credit of the drawer, does not amount to an assignment of the money to the credit of the drawer. Baer v. English, 84 Ga. 403 (11 S. E. 453, 20 Am. St. R. 372); Haas v. Old National Bank, 91 Ga. 307 (18 S. E. 188); Georgia Seed Co. v. Talmadge, 96 Ga. 254 (2) (22 S. E. 1001); Talladega Mercantile Co. v. Robinson, 96 Ga. 815 (22 S. E. 1003); Reviere v. Chambliss, 120 Ga. 714 (48 S. E. 122); Bank of Hamilton v. Williams, 146 Ga. 96 (90 S. E. 718). This principle has been embodied in our negotiable-instruments law. By section 189 of that law it is provided that “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank,
But in this case we are not dealing with an ordinary check drawn by a depositor generally upon his funds on deposit in the bank on which the cheek is drawn. We are dealing with a check so drawn and certified by the bank at the instance of the drawer. In the third division of its decision in this case the Court of Appeals held that where the drawer, before delivery of the cheek, himself procures its certification by the bank upon which it is drawn, the mere fact of such certification at the instance of the drawer does not, before delivery of the cheek, operate as an assignment of the funds of the payee, and that so long as the drawer continues to own the check by reason of its non-delivery he is entitled to control it, and may surrender it to the bank for cancellation. We are of the opinion that this ruling was erroneous under the facts of this ease. The case at bar is not one in which an ordinary check was drawn by the drawer on his own funds in bank, in favor of the payee in payment of a debt or other obligation of the drawer to the payee, and was transmitted by mail to the payee. When a check is certified by the bank on which it is drawn, the .certification is equivalent to an acceptance. Ga. Laws 1924, p. 163; 12 Park’s Code, § 4284(4). When the bank certified this check,
The Court of Appeals treated the check involved in this case as undelivered at the time the summons of garnishment was served upon the drawers. This makes it necessary for us to determine whether this check had been delivered'before the summons of garnishment was served upon the drawers. By section 16 of our negotiable-instruments law, “Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto.” Ga. Laws 1924, p. 130. By section 191 of this law delivery of a check means the transfer of its possession from the drawers to the payee; and such transfer may be actual or constructive. Ga. Laws 1924, p. 164. This is but a statement of the common law prior to the adoption of this act. Hansford v. Freeman, 99 Ga. 376, 379 (27 S. E 706); Reese v. Fidelity Mutual Asso., 111 Ga. 482, 485 (36 S. E. 637); 8 C. J. 203 (§ 333) A. Delivery may be made by mail. “Payment by post is at' the risk of the sender, unless done by direction, either express or implied, of the creditor or his agent.” Civil Code (1910), § 4313. This section refers to the remittance of coin or currency which constitutes legal tender under the -law. It clearly recognizes the right of a party to remit money by mail to his creditor in payment of a debt, the debtor assuming the risk unless done by direction, express or implied, of the creditor or his agent. For a debtor to protect himself against loss by remitting money to his creditor by mail, he must show either the express authority of the creditor to send in that mode, or usage to that effect in business, from which the creditor’s authority may be inferred. Morton v. Morris, 31 Ga. 378. Clearly, if a debtor can remit money by mail to his creditor, 'the debtor assuming the risk unless the remittance is made with the assent of the creditor, he can transmit a certified check by mail at his risk.
The general rule is that depositing a note in the post-office addressed to the payee with his assent is a sufficient delivery thereof. Loud v. Collins, 12 Cal. App. 786 (108 Pac. 880); Trego v. Cunningham, 267 Ill. 367 (108 N. E. 350). By depositing a note in
Under the facts appearing in the record, we are of the opin