Ross v. Saulsbury, Respess & Co.

52 Ga. 379 | Ga. | 1874

McCay, Judge.

1. This acceptance appears to have been for the accommodation of both the drawer and indorser. Indeed, under the proof, that was the distinct understanding. The action is not on the paper, but for the money paid, and the draft is the inducement.' Under the evidence both these parties are liable to the acceptors for money paid to their use, the one as principal, and the other as security. They are liable jointly, and under the constitution, as joint promissors.

2. We think the liability of the defendants below — the indorsers — depended on whether or not they had notice that the previous drafts, which absorbed the whole fund, were secured by the pledge of the same crop as the draft indorsed. If they did have this notice they cannot complain, as they ivere not hurt, either by the release or appropriation of the cotton to those previous drafts. The indorsed draft appropriated the cotton. If the plaintiffs stood by aud saw this appropriation made Avithout notice that they had a previous claim upon it, they ought not to be allowed now to set it up; it would be a fraud on the indorser — the security. But if the security knew he was taking a pledge upon property already pledged, he has no right to complain if the prior appropriation has absorbed or would absorb it all. We think a new trial ought to be had in which this issue should fairly go to the jury under the evidence the "parties may be able to produce. The judge was in error in saying notice was not material.

Judgment reversed.