Quinney v. Citizens Bank

19 Ga. App. 49 | Ga. Ct. App. | 1916

Wade, C. J.

Waiving all'questions not necessary to the determination of the exact point involved in this case, the defendant’s answer as a whole set up one legal defense, if not more. The court, therefore, erred in striking all but the formal portion of the plea and in thereafter directing a verdict for the plaintiff. Judgment reversed.

Hodges, J., absent.

When the case came up for trial the plaintiff’s counsel made a motion to strike paragraphs 5, 6, 7, and 8 of the defendant’s answer, because: (1) Taken together they do not constitute a legal defense. (2) The said defense sets up transactions between-the defendant and W. O. Gresham, J. 3?. Humphrey, and R. N. Berrien, doing business as the Disko Company, and the acts complained of were those of R. N. Berrien as a member of the Disko Company and not as cashier of plaintiff’s bank: (3) The plea of renewal is insufficient in law, as there is no allegation that the renewal note was ever paid, or that it was ,ever accepted by plaintiff. (4) The plea of payment is insufficient in that there is no allegation that the said bank ever received the proceeds of the sale of the assets, or that there were not other outstanding claims which took the money arising from the sale thereof. The court sustained the motion to strike, and then directed a verdict for the plaintiff.

Brinson <& Hatcher, B. V. Heath, for plaintiff in error, cited: As to cashier’s authority, and ratification: Mott v. Semmes, 24 Ga. 555; Dolvin v. American Harrow Co., 125 Ga. 706; Atlanta Buggy Co. V. Hess Spring Co., 124 Ga. 342-3; Singleton v. Banlc, 113 Ga. 528; Merchants Banlc v. Bawls, 7 Ga. 197; Wood Hydraulic Hose Mining Co. v. King, 45 Ga. 42. As to failure to get tbe additional signatures before delivery: Hansford v. Freeman, 99 Ga 376; Moore v. Farmers Mutual Insurance Association, 107 Ga. 199; Heitmann v. Commercial Bank, 6 Ga. App. 584; Hartman Stock Farm v. Henley, 8 Ga. App. 255. As to novation: Gresham v. Morrow, 40 Ga. 487; Tucker v. Ball, 68 Ga. 814.

H. J. Fullbright, contra.