56 Ga. 605 | Ga. | 1876
The suit was by Meador, on three certificates of deposit, against the Dollar Savings Bank, as maker, and Lynch and
1. At the trial, the court admitted parol evidence tending to prove that the certificates were sold by Lynch to Goldsmith on an express agreement that Lynch was not to be liable as an indorser, or otherwise; that the indorsements by him were in blank, and made solely for the purpose of enabling Goldsmith to collect from the bank, etc. The admission of some of this evidence over the plaintiff’s objection is one of the grounds of the motion for a new trial. Having in mind the state of the pleadings, we cannot doubt that it was inadmissible. The action, as against Lynch, was not based on blank indorsements, but on indorsements in full. They were regularly declared upon, according to a form of declaration sanctioned by statute. If, as set out, they were not such as he made, they were either not his at all, and he should have denied them by a plea of non est factum, (Code, sections 2851, 2855,) or they were his, qualified by the special fact that they were executed in blank, and by the further fact that their ordinary legal effect was obviated by a special agreement, and he should have pleaded both the blank execution and the special agreement. In the pleas which he filed there was no hint that he indorsed in blank, or that anything had been written which he had not expressly authorized. He answered to the indorsements as the plaintiff set them forth; and, without averring anything against their form, undertook to combat their legal effect. Thus stood his case on the record. His evidence went to establish quite a different case. Prior to the Code, even a blank indorsement was not subject to be modified in its legal effect by parol evidence: 4 Georgia Reports, 106, 266; 33 Ibid., 491. The Code, section 3808, changes that rule, but it does not expose any other indorsements to like modification. Where a question of consideration is raised, or a question of bailment for the purpose of collection, doubtless, on general principles, other indorsements can be reached, as well as those in blank: 22 Georgia Reports, 24; 30 Ibid., 946; but this
2. Under the Code, unless bona fide holders are prejudiced, all-indorsements made in blank are open to explanation by parol: 43 Georgia Reports, 382. While this is a change in our own law, it is not altogether a novelty, as appears in 2 Parsons on Notes and Bills, 518, 519, and many cases there cited. The Code cuts us loose from the rule which prevails in New York and some other states, and puts us under the opposite rule which many of the states recognize and administer. It was argued before us that, as a blank indorsement is authority for filling it up with the usual words appropriate to an indorsement in full, parol evidence would be no longer admissible after this was done. We think otherwise. The right to explain would be worthless if it could be thus defeated. No implied authority is delegated which is not accompanied and qualified by the whole law of the transaction. Though the holder may supply the ordinary words, according to commercial usage, in so doing he does not" change the fact that the indorsement was executed in blank; and,incident to that class of indorsements, is the right to explain, as against all holders not protected by their bona fides. With proper pleadings to admit the truth in evidence, the indorsement will be considered as continuing in its original state. Once in blank, always in blank, so far as the right to explain is concerned,
3. In this case the equities between prior parties would affect the plaintiff. The certificates are virtually payable upon “call,” which means, we think, the same as demand; and paper payable on demand is due immediately: Code, section 2791. For a holder to be within the rule,of protection, he must have acquired his title before the instrument became due; Ibid., sections 2785, 2786.
4. The plaintiff’s motion to dismiss his action came too late. He might have dismissed as to the maker and the non-
Judgment reversed.