170 Ga. 296 | Ga. | 1930
A deposit account in the name of T. B. McRitchie, agent for Mrs. Annie A. McRitchie, was opened in the Manufacturers National Bank of Newnan on September 26, 1924, and was continued through 1926. The plaintiff is the wife of McRitchie,
In its answer the defendant admits that the husband delivered to it the checks dated January 15, and June 7, 1925, signed as alleged by the plaintiff, but denies that it had any notice or knowledge that the checks were drawn on funds of plaintiff and that the funds were hers. Upon information and belief it alleges that if the account in the Manufacturers National Bank of Newnan stood in the name of plaintiff, the portion thereof equal to the amount of said checks consisted of money deposited therein by and belonging to her husband. Defendant further admits that the husband issued and delivered it to. the check of July 15, 1925, and that the same was drawn and signed as alleged, but denies that the funds on which it was drawn were those of the plaintiff. The defendant likewise admits that on July 29, 1925, it loaned to plaintiff and her husband the sum of $13,000 upon their joint note, secured by collateral as alleged, and that the proceeds thereof were deposited as alleged. It denies that the proceeds of said loan belonged to plaintiff. The defendant likewise admits that the husband drew and delivered to it the check of January 11, 1926, and that the proceeds thereof were paid on the indebtedness of the husband. It denies that it knew that said money belonged to plaintiff, but- says that it was the money of the husband. Defendant admits that on Juty 15, 1926, the husband gave to it the two checks of that date, as alleged, and
The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial upon the general grounds and upon certain special grounds to which reference will be hereinafter made. Each side contends that a verdict was demanded in its favor. The plaintiff contends that a verdict should have been rendered in her favor at least for the amount of the two checks drawn in favor of defendant, one for $2065, dated July 15, 1926, and drawn on the Manufacturers National Bank of Newnan by “T. B. McRitchie, Agt. for Mrs. Annie A. McRitchie,” and the other for $1990, dated February 10, 1927, drawn by her on the First National Bank of Newnan, the proceeds of which were received by defendant and applied on said indebtedness of the husband to it. On the other hand the defendant claims that a verdict in its favor was demanded under the law and the evidence. The bases of this connection will be hereinafter more fully dealt with.
“A creditor who receives in payment money belonging to his debtor’s wife, knowing it to be her separate estate, acquires no title to it as against her, whether she consent to the payment or not. The Code, in declaring a sale void when made by the wife to a creditor of the husband in payment of his debt, comprehends, in its reason and spirit, a transaction in money as well as a transaction in property.” Humphrey v. Copeland, 54 Ca. 543. The ruling in the case just cited has been followed in many other decisions of this court. Boyd v. Chappell, 56 Ga. 22; Kent v. Plumb, 57 Ga. 207; Chappell v. Boyd, 61 Ga. 662; Maddox v. Oxford, 70 Ga. 179, 184; Lewis v. Howell, 98 Ga. 428 (25 S. E. 504); Grant v. Miller, 107 Ga. 804, 806 (33 S. E. 671). So if the defendant bank received in payment on the indebtedness of the husband, by means of the checks hereinbefore referred to, money belonging to the wife, knowing it to be her separate estate, the defendant bank acquired no title to it as against the wife, whether she con
This brings us to consider the checks of January 15 and June 7, 1925, more specifically referred to above, and which were drawn by the husband on the Manufacturers National Bank 'of Newnan, and signed bjr the husband with the word “agent” after his signature. In her petition the wife alleges that the defendant received from her husband the moneys represented by these checks in payment of the husband’s indebtedness to it, knowing that said moneys so received belonged to her. This contention is denied by the defendant. “An instrument signed by one as agent, trustee, guardian, administrator, executor, or the like, without more, is the individual undertaking of the maker, such words being generally words of description.” Civil Code (1910), § 3570. That section was taken from the decision of this court in Crusselle v. Chastain, 76 Ga. 840, where it was ruled that “The addition of the word Trustee’ after the name of the signer of a note, without more, is mere descriptio personae, and the debt is that of the maker individually. 3 Ga. 283; 51 Id. 482.” The principle embodied in this section of the code was first announced by this court in Cleaveland v. Stewart, 3 Ga. 283, in which a paper in the language, “We, the Trustees of Oakchumpna Academy, promise to pay A. C. Cleave-land, or order, six hundred dollars,” and which was signed by' the makers individually, was the individual liability of the makers, and that the words “Trustees of” were mere words of description. Again in Graham v. Campbell, 56 Ga. 258, this court held that “If an agent make a note in his own name, and add to his signature the word agent,’ and there is nothing on the note to indicate who is the principal, the agent will be personally liable just as if the word agent were not added.” This principle was again announced in Burkhalter v. Perry, 127 Ga. 438 (56 S. E. 631, 119 Am. St. E. 343), together with an exception to this general rule. The general principle is applicable to checks drawn by one with the word “agent” or other like term after his signature. So a deposit in a savings bank made in the name of “W. P. S., Surrogate,” is the individual deposit of S., and the same could be withdrawn by his administrator, since it must be regarded as a mere personal deposit. Scudder v. Trenton Sav. Soc., 58 N. J. Eq. 154 (43 Atl. 3). So where a cashier opened an account in a bank in his name as cashier,
So the two checks above referred to, drawn by the husband and signed by him with the word “agent” added to his signature, without more, were the individual checks of the husband, and did not put the payee upon notice that they were drawn on funds which did not belong to the husband; nor did such signature to these cheeks impose upon the payee the duty of inquiring whether they were drawn on the funds of the drawer or funds of some one else. But the wife alleges in her petition that the defendant received these checks with notice and knowledge that they were drawn on hex funds, and with such knowledge applied the proceeds to the indebtedness of her husband. On the trial she testified that the defendant knew that the money borrowed from it on the joint note of herself and husband was her fund, that her husband was her agent, and that that money was borrowed on her stock. In reference to the checks on the Newnan Bank, she testified that they liad notice that her husband was her agent, that an investigation by that bank would have disclosed that it was her money. The husband testified that the Manufacturers National Bank of New-nan kept the account and knew whose account T. B. McRitchie, Agent, was, because he told them when he made the original deposit. This evidence does not sustain the allegations of the petition that the defendant had notice or knowledge that these two checks were drawn on funds of the wife in the Newnan Bank. This being so, the verdict was demanded in favor of the defendant as to these two checks.
Is a check so drawn and signed, when drawn upon an account in a bank so kept, notice to the payee that it is the wife’s check drawn on her funds ? Actual notice to one is such as is positively proved to have been given to him directly and personally, or it is such as is presumed to have been received personally because the evidence within his knowledge was sufficient to put him upon inquiry. Jordan v. Pollock, 14 Ga. 145 (4); Johnson v. Dooly, 72 Ga. 297; Hunt v. Dunn, 74 Ga. 120, 124. In Gerard v. McCormick, 130 N. Y. 261 (29 N E. 115, 14 L. R. A. 234), it was held that “The words ‘Agt. Glass Buildings,’ added to the signature to a cheek, are enough to put one who receives it in payment of a debt from the signer on inquiry as to his authority to use the fund for such payment.” In Newman v. Newman, 160 App. Div. 331 (145 N. Y. Supp. 325), a corporation made its note to
But it is urged by counsel fpr the defendant that the check last dealt with was paid -with funds of the husband, and that for this reason the plaintiff was not entitled to have the amount thereof set off against the claim of the defendant. As we have seen, the deposit account referred to in the preceding division of this opinion
On February 10, 1927, there was a deposit account in the First National Bank of Newnan in the name of T. B. McRitchie, Agent. Plaintiff had an account in her own name in said bank during the years 1924 to 1927, inclusive. During that period she deposited in that account the sum of $42,685.48. On February 10, 1927, she drew her check for $1990 on the above-named bank, payable to the order of the defendant. This check was collected by the defendant and applied to the payment of the above indebtedness oE the husband to it. The defendant admits that it received this check and applied the proceeds thereof to the payment of the husband’s indebtedness to it, but denies that it was paid from funds of the wife. There is no evidence in the record tending to show that this check was drawn on the funds in the bank standing in the name of T. B. McRitchie, Agent. This, check was drawn by the wife in her own name; and the fair presumption is, in the absence of proof, that it was paid from the deposit account standing in her name in this bank. Besides this presumption, the evidence of the plaintiff and her husband tends to establish the fact that this check .was so drawn. There is no evidence in the record tending to establish the allegation of the answer that this check was not paid from funds of the wife. In these circumstances this check was received by the defendant from the wife in payment of the husband’s indebtedness to it; and under the ruling made in the first-division of the opinion, the amount of this check could be set off against the indebtedness due by herself and husband on the joint
On July 29, 1925, the plaintiff and hex husband executed to the defendant their joint note for $13,000. This note was secured by certain certificates of stock owned by the wife. The proceeds of this loan, less the discount, were deposited on or about July 29, 1925, in the defendant bank to the joint account of plaintiff and her husband. On July 30, 1925, a signature card, signed by the plaintiff and her husband, was given to the defendant. This card was in this form: “The signatures of persons authorized to draw checks which the company will recognize in payment of funds or for the transaction of other business or accounts of the undersigned are hereby given below. Joint Account. The Atlanta Trust Company is hereby authorized to pay funds on this account to either party or the survivor.” This card was signed by T. B. McRitchie and Mrs. Annie A. McRitchie. The wife claims that this was a loan to her individually, and that the proceeds of this note belonged to her. On the other hand the defendant contends that this was a joint loan -to the husband and wife, and that the note speaks the truth' of the transaction. The husband testified that he volunarily signed this note as security, that he was not asked to do so by any officer of the bank, and that the loan was to the wife for the purpose of investing in Florida real estate, and for the purpose of paying a balance of $3060 which she owed on 100 shares of the capital stock of the Georgia Casualty Company, and that he so informed S. McGauhy, vice-president of the defendant, who closed this loan for the bank. McGauhy denied this statement. He testified that at the time of making this loan he knew that the husband and his associates owed his bank $175,000, and that they had pledged with the bank collateral demands as security-therefor. He further testified that the husband per se had no further credit at the bank at the time this $13,000 loan was made, that as a matter of fact the bank certainly made the loan based on the collateral furnished by the wife, and that the bank knew that it was her collateral. There was deposited on this joint account, in addition to the net proceeds of the note for $13,000 above referred to, from August 27, 1925, to July 15, 1926, inclusive, various amounts aggregating in the whole approximately $14,574.28. The total
From January 23, 1926, to July 15, 192-6, there were deposited in this account various sums, amounting to $5,332.58. Whether this was the total amount of deposits between those dates does not satisfactorily appear from the record. One item of the deposits so made was $960. It was made on July 15, 1926. On that date the husband drew two checks on this account, one for $905, and the other for $55, both in favor of the defendant. The proceeds of these checks were applied by defendant on the husband’s indebtedness to it. The above deposit of $960 was made up of two items, one for $300 and the other for $660. The first of these amounts was sent to the husband by Small to be paid to the defendant, and this amount was paid over to the defendant in one of the checks of July 15, 1926. The other amount embraced in this deposit was a check for $660, which the husband testified belonged to him, and he gave to his wife. On August 27, 1925, there was deposited in this account $416.66, the same being for salary of the husband as president of the Georgia Bond & Mortgage Company. On September 25, 1925, there was deposited in this account $2,710.05. It does not appear to whom this money belonged, whether to the plaintiff, her husband, or others. On November 4, 1925, there was deposited in this account $566.66, and on November 14, 1925, there was deposited in this account $2,131.31. It does not appear to whom these funds belonged. On November 30, 1925, there was deposited $416.66, the same being the salary of the husband. On December 14, 1925, there was deposited in this account $2,994.36, and it does not appear from the record to whom these funds belonged. The husband testified that it might have been dividends coming to him from his own stock, or that of the wife, or money of
A husband and wife may engage in a joint enterprise, make joint contracts in reference thereto, and execute joint promissory-notes therein. Where such is not merely the outward color but the real truth of the transaction, a debt contracted in the joint enterprise is the debt of the wife as well as of the husband, and she may pledge her separate property as security for its payment. Schofield v. Jones, 85 Ga. 816 (2) (11 S. E. 1032). If the relation of debtor and creditor exists between the lender and the husband, and the form given to the writing executed touching the
So in this case, if the pa3'mcnt of January 11, 1926, by the hus
Applying the rulings above made, we can not say that a verdict was demanded in favor of the wife as to any payments made by the husband to the defendant, except that dealt with in the 5th division of the opinion. So we can not hold that the verdict was demanded in favor of the defendant upon all the issues involved in this case. This brings us to consider the grounds of the motion for new trial.
In the first ground of the amendment to her motion for new-trial the plaintiff alleges that the court erred in charging the jury, in effect, that if the husband paid the wife’s money on a joint obligation of herself and husband, whether or not the creditor knew it was her money, such' amount so'paid on a joint obligation, if it was a joint obligation, could not be recovered in a suit like the one now on trial. In the second ground she complains that the court erred in charging the jrrry that “If the debt should be that of the wife herself, or such a joint obligation of the wife and husband as I have described, in either of those events money in the joint fund paid
In the 3d ground the plaintiff complains that the court erred in charging the jury that “If the plaintiff should fail to carry that burden, or unless a preponderance of the evidence, taken together, convinces you that the husband signed as security only, the proceeds would be the joint funds of the husband and wife, and any payment made by the husband from such joint fund, if that be true, or if a joint fund owned by both, however the checks may have been signed, could not be recovered by the wife in this case.” The plaintiff excepts to this charge upon the grounds (a) that the husband could not use the proceeds of a joint note of himself and wife in payment of his individual indebtedness to a creditor with knowledge of the facts; and (b) that payments from a joint fund of the husband and wife to a creditor of the former having knowledge are binding upon the wife only to the extent of so much of the consideration, if any, as was expended for her use, or so much thereof as she actually received the benefit of, and that she could not be charged with the checks executed by her husband to his creditor and applied by the creditor in payment of the individual debt of the husband. We do not think that this was an accurate and correct statement of the law. As we have seen, when money is obtained by a husband on the joint credit of himself and wife and applied to his own use, he is the real primary debtor, and the wife is in the position of a surety. Dobbins v. Blanchard, supra. We think the court erred in this instruction to the jury.
In the 4th ground the plaintiff complains that the court erred in charging the jury that they should find from the evidence whether it was true that the wife made a gift of the funds so borrowed from the defendant to her husband. She contends that this instruction was without evidence to support it, and was calculated
The court charged the jury as follows: • “While the general rules of law are as given you in charge respecting a wife’s right to recover her money paid by her or her husband on her husband’s debts to a creditor who knows she is so doing would give her a right to recover it back, if a wife should make such payment, or if her husband, having her authority to draw checks and make payments out of her funds, should with her knowledge, and if she intended at the tinie to make the payments out of her money to protect collateral in which she had an interest or preserve or protect her interest in the collateral and not solely to pay her husband’s debt or make a paj'ment on her husband’s debt, as she contends in this case, such sum or sums so paid could not be recovered in any event. The law would permit the wife to either protect col-laterals in which she was interested, if she could protect them, or permit them to be lost or sacrificed or to go as she might decide; but if she should malee payment to her husband’s creditor, intending to protect her own interests in the collateral and not for the purpose solely of paying his debts out of her money, she could not in that event recover back any sum or item so paid, if paid to protect such collateral, as I have said. It is for you to decide from the evidence what the truth is as to these payments, or either of them, and what her purpose and intention was.” To this charge the plaintiff excepts upon the grounds: (a) There is no evidence that movant, or her husband acting for her, made any payments out of her funds with the intention to ¡u’otect or preserve any collateral in which she. had an interest, (b) Movant, payee of an undelivered collateral note executed by her husband to her and retained in his possession, did not assume any obligation to pay the first lien on the collateral mentioned in the note, upon which defendant held the first lien, (c) There was no evidence that movant paid, or authorized her husband to pay, any of her money to defendant upon the individual debts of her husband for the purpose of. protecting any equity she might have in collateral which her husband had pledged to the defendant to secure the indebtedness of himself, Gunn, and Small to the defendant, (d) There was no evidence that movant had any knowledge or notice of the
To properly comprehend the question raised in this ground it becomes necessary to consider some of the facts involved. On September 8, 1922, the husband executed his note for $2,879.62, payable on demand to the order of his wife. This note contains this recital: “In substitution for 30 shares McBitchie Inc. stock, any equity in Georgia Casualty Company stock held by Atlanta Trust Company and by Macon Security Company as collateral, 1300 shares, by agreement. This substitution made when 30 shares Mc-Bitchie Inc. stock given First .National Bank of Newnan, Georgia, as collateral on obligation of T. B. McBitchie.” The husband testified that he got his wife’s consent to make the above substitution. There is in the record an agreement between the plaintiff and her husband, dated April 15, 1924, in which it is recited that the wife had loaned to her husband $14,000, represented by a note of even date, signed by her husband and payable to her order, with interest at the rate of 8 per cent, per annum, and due on demand. This agreement recites that in order to secure the payment of said note the husband transferred to his wife all of his right, title, interest, and equity in certain stock in the Georgia Casualty Company, and certain bonds of the Macon Security Company, which are fully described in an agreement between W. E. Small, Will Gunn, and her husband. Attached to the above contract was a copy of an agreement between said Small, Gunn, and McBitchie, dated April 15, 1924. This agreement recites that the parties have jointly borrowed from the defendant the sum of $175,-000, with which sum they have purchased 4375 shares of the in
In Daniel v. Royce, 96 Ga. 566 (23 S. E. 493), this court held: “Where a husband made a conveyance of land to his wife, reciting therein that it was subject to a deed to a third person, previously made bjr the grantor to secure a specified sum which had been loaned to him, and the wife, being thus clothed with the title, borrowed money and gave her own promissory note for the same, intending to use a portion of. such -money in paying oil the above-recited encumbrance, although this intention was known to the lender, and although the wife did in fact use a portion of the money borrowed by her for the purpose stated, she could not defeat a recovery by the lender upon the note, either in whole or in part, upon the ground that it was given for her husband’s debt, or for money with which to pay the same. Properly treated, the loan was one con
Counsel for the defendant rely upon the above cases to sustain the proposition that where collaterals had been deposited with the defendant by the husband to secure an indebtedness of $175,000
The court charged the jury as follows: “In a case where such payments by the wife actually protected and redeemed or recovered the equity in the collateral in which she owned an equitable interest, a wife would not be heard to assert that she had made payments for any other purpose than to redeem such equity,' since the law would presume if she recovered and held her interest in the collateral that she had made the payments for that purpose; but in a case where she did not so protect and redeem such' collateral, the question of her intention in making payments to the husband’s .creditor is for the jury under the rules of law already given, and that would apply with equal force to other notes in this case, as I have given you in charge, if others than the two mentioned or included in the pleadings as now contended by Mr. Powers, and to which pleadings you should look.” In the 7th ground of the motion for new trial the plaintiff excepts to this 'charge, upon the grounds that there is no evidence upon which to base it, because it necessarily confused and misled the jury, and because under the undisputed evidence the plaintiff drew her check for $1990 upon her funds in the First National Bank of Newnan, in favor of the defendant, in payment of the individual indebtedness of the husband. We are of the opinion that this charge is subject to some of the criticisms made upon it. This charge tended to confuse and mislead the jury. The evidence discloses that $3060 of the loan made by defendant on the joint note of the wife and husband was used in redeeming 100 shares of Georgia Casualty Company stock held by the Macon National Bank. In the present proceeding the wife is not seeking to recover this sum from the defendant. There is no evidence that the payments made with the wife’s money actually protected, redeemed, or recovered the equity in the collateral pledged by the husband to secure the loan of $14,000 made by the wife to him. In view of these facts this instruction was not adjusted to the issues involved, and tended to confuse and mislead the jury.
The court charged the jury as ’follows: “I charge you that the mere addition of the word agent after the signature of Mr. McEitchie on checks payable to the defendant would not be sufficient to charge the defendant with knowledge, either actual or
In the 9th ground of the motion the plaintiff contends that the verdict is contrary to the evidence and to laAA, in that the undisputed evidence is that the check for $2065 drawn upon the funds of plaintiff in the Manufacturers National Bank.of NeAvnan, and applied by defendant to the individual indebtedness of the husband to it, was signed “T. B. MeRitchie, Agt. for Mrs. Annie A. Mc-Ritchie,” and the undisputed evidence Avas that the defendant knew of the marital relationship between plaintiff and T. B. MeRitchie,- and was necessarily aware that funds of the wife were being used to pay the individual debts of the husband, the jury not allowing plaintiff credit for the check upon her note to defendant. We think this ground is without merit, for the reasons assigned in the 4th division of this opinion.
The plaintiff, in the 10th ground of the motion for neAv trial, complains that the verdict AAras contrary to the evidence and to law, in that the undisputed evidence was that she executed, delivered, and paid the check for $1990, drawn.upon her funds in the First National Bank of Newnan, payable to the defendant and signed by her individually, to defendant, and defendant accepted and credited the payment upon the individual indebtedness of her husband to it, the jury nt>t allowing plaintiff credit for the check upon her note to it. Under the ruling made in the 5th division of this opinion, this ground is well taken.
In the 11th, 12th, 13th, 14th, and 15th grounds of her mo
As we grant a new trial, we do not deal with the 16th ground which is based upon newly discovered evidence. On the next trial plaintiff can avail herself of all pertinent evidence.
Judgment reversed.