Russell v. Smith Bros.

97 Ga. 287 | Ga. | 1895

Lumpkin, J.

1. Where one voluntarily and without consideration gave his draft in payment of the debt of another, for which the drawer was in no way bound or responsible, there being upon the paper upon which the draft was written a receipt signed by the payee acknowledging payment in full of the debt in satisfaction of which the draft was given, but it being understood between the parties that this receipt was not to become effective until the draft was actually paid; and where shortly after such draft was delivered and before it was presented for payment or anything to the injury of the payee had occurred, the latter was informed by the drawer that he would not be bound by the draft but would order payment of the same stopped, the drawer was not liable for its payment. The contract embodied in the draft, being entirely without consideration, was a mere nudum pactum.

2. On the other hand, if in such case the creditor, in consideration of the giving of the draft, executed a binding receipt discharging his debtor, or, because of the giving of the draft, was prevented from collecting his debt, or otherwise injured in that respect, the drawer was liable.

3. The evidence being directly conflicting as to the real truth of the matter, the court erred in directing a verdict for the plaintiffs, but instead of so doing should have submitted the case to the jury for their determination. Judgment reversed.

ITenry Smith testified: That receipt was written by request of Russell; he said he wanted to pay the account of Prevatt & Co., and to write out the receipt and he would give me the check; he showed me his bank book, where he had nearly one thousand dollars in the bank. I never looked to Prevatt & Co. for that account after that. I went to Thomasville on telegraphic advices from my house to see Capt. Hammond for the purpose of protecting ourselves in this matter, and I saw Russell.

D. A.. Russell, by Glenn & Rountree, for plaintiff in error. Donalson & Hawes, contra, •