Roush v. First National Bank

102 Ga. 109 | Ga. | 1897

Cobb, J.

The official report states the facts.

1. The action having been brought in the name of the First National Bank of Charleston upon certain promissory notes, copies of which were attached to the petition, and the notes being payable to “ J. C. Simonds, cashier, or order,” and payable at the First National Bank of Charleston, there was no error in allowing an amendment to the petition, which alleged that the payee of the notes was in fact cashier of the plaintiff, and that the notes were the property of the plaintiff. Civil Code, §5098; Hobbs & Tucker v. Chemical National Bank, 97 Ga. 524.

Nor was there any error in allowing a further amendment substituting the name of J. C. Simonds in the suit as plaintiff suing for the use of the bank. Civil Code, § 5105. The first amendment was sufficient to authorize the plaintiff to proceed with the suit in its own name, and the latter amendment, though lawful and proper, was unnecessary, and was therefore harmless.

2. Where the note sued on was secured by the deposit of certain stock which, under certain conditions, could be sold by the payee and the proceeds applied to the payment of the notes, there was no error in allowing an amendment to the petition, in which it was alleged that such stock was deposited as collateral security, and had been, before the filing of the suit, sold for a specified sum, and admitting that the defendant was entitled to a credit for that amount.

3. Even if the sale of the stock was unauthorized and void, as it appeared from the evidence that the actual value of the stock on the date of the sale was obtained and a credit for that amount had been allowed to the defendant on the debt, and it appeared that there had been no change in the value of the stock between the date of the sale and the date of the trial, under the principle of the decision by this court in Waring v. Gaskill, 95 Ga. 731, the trial court was right in rendering a judgment for the plaintiff for the amount of the. notes, after the net proceeds of the sale of the stock had been applied as a credit on the debt.

There was no error committed by the judge of the court below, and the final judgment was correct.

Judgment affirmed.

All the Justices concurring.