Monk v. National Bank, 13 Ga. App. 740

Monk v. National Bank

13 Ga. App. 740 | Ga. Ct. App. | 1913

Russell, J.

The court did not err in the instruction of which complaint is made, nor in refusing the instruction requested. The evidence authorized the verdict, and there was no error in refusing a new trial.

Judgment affirmed.

The trial resulted in a verdict against the defendant for the amount sued for, and, on refusal of his motion for a new trial, he excepted. In addition to the usual general grounds, the motion contained the following grounds:

“Because the court charged the jury in the following language: ‘If you should believe, by a preponderance of the evidence, .that J. L. Brooks and the defendant, S. S. Monk, did enter into a bona fide contract and agreement, under the terms of which J. L. Brooks was to act as the agent of Monk in performing certain duties and in doing certain things in connection with this particular matter, which has been testified before you, and you believe that as compensation for the services thereby rendered or alleged to have been rendered by the said Brooks to S. S. Monk, S. S. Monk gave Brooks a note for $1,000, which is alleged to have been finally transferred to the plaintiff in this case, and if you believe that to be the truth', and that it was a bona fide transaction between the parties, and was given upon the strength of certain services performed by Brooks, then it would be your duty to bring in a verdict for the amount sued for;’ said charge being erroneous because the evidence of the plaintiff presents no such theory as covered by this part of the court’s charge; the plaintiff nowhere contended that Brooks acted as the agent of Monk in any sense of the word, but it is conclusive that Brooks acted only in his capacity as cashier of the plaintiff bank in advancing money to Monk.”

“Because the court failed to give to the jury the following written request to charge, made by the defendant and presented to the court: ‘If you believe, from the evidence, that S. S. Monk, the defendant, went to J. L. Brooks, cashier of the National Bank of Tifton, and invited him to enter with him into the purchase of this property, both parties to have an interest therein, and that said Brooks refused such invitation, and that it was then agreed between said Brooks and Monk that Brooks would furnish Monk with money of the bank, sufficient to purchase such land, and that, in consideration of furnishing such money, Monk was to pay Brooks $1,000, and that Monk actually executed and delivered such a note to Brooks, and that the note sued on is a renewal of this $1,000 note so given, then I eharge you that if this is the only consideration of such note, and you believe this from the evidence, you can not return a verdict in favor of the plaintiff.’ ”

Robley D. Smith, for plaintiff in error,

cited: As to knowledge by the bank: Brobston v. Pennimm, 97 Ga. 537; Morris v. Georgia Loan Co., 109 Ga. 37; Fouché v. Merchants National Bank, 110 Ga. 837; Bank of St. Marys v. Mumford, 6 Ga. 49. Consideration of contract: Code of 1910, § 4241; Radcliffe v. Biles, 94 Ga. 480. Kenewal of note by one ignorant of failure of considera- ■ tion: Pettyjohn v. Liebscher, 92 Ga. 149. Usury: Code of 1910, § 3436; Scofield v. McNaught, 52 Gd. 69; MacKenzie v.. Garrett, 78 Ga,. 251; Harrison v. Stiles, 95 Ga. 264; Pottle v. Lowe, 99 Ga. 576; Clarice v. Howard, 111 Ga. 242; McCall v. Herring, 116 Gn. 235.

Fulwood & Sheen, contra,

cited: Atlanta Bottling Co. V. Hutch-ens, 109 Ga. 550; Taylor v. Felder, 3 Ga. App. 291.