Bedell v. Scarlett
| Decision Date | 31 October 1885 |
| Citation | 75 Ga. 56 |
| Parties | Bedell. vs. Scarlett. |
| Court | Georgia Supreme Court |
Drafts. Negotiable Instruments. Indorsement. Principal and Agent. Evidence. Before Judge Mershon. Camden Superior Court. April Term, 1885.
Scarlett sued Bedell, as maker, and Miller, as indorser, on the following drafts:
The other draft sued on was for $72.37, in all other respects, similar to the above.
Bedell pleaded the general issue, and a special plea, as follows:
"The drafts were given in payment of timber purchased by this defendant from J. W. Miller as the agent of Fox & Burns; that said timber was purchased for Fox & Burns, and for their use, and was delivered to them by J. W. Miller; that defendant was only the purchasing agent of Fox & Burns and had no interest in said timber, which fact was well known to and understood by both J. W. Miller and F. M. Scarlett; and the said drafts were made by defendant and received by Miller with full understanding that defendant was only the agent of Fox & Burns, and said draft was accepted and received by F. M. Scarlett and J. W. Miller with full notice and with the knowledge and understanding that they took and received said drafts on the faith of payment by Fox & Burns, and that they alone, and not this defendant, were liable thereon, and that defendant was only the agent of Fox & Burns and would not be liable for payment."
Plaintiff introduced original drafts. Defendant admitted presentation and refusal to pay, and plaintiff closed.
Defendant offered to sustain his plea by his parol testimony, which, being objected to, was excluded.
The verdict was in favor of plaintiff, and defendant moved for a new trial, on the following grounds:
(1.) Because the court refused to allow defendant to introduce parol evidence to support his plea as agent for Fox & Burns.
(2) and (3.) Because the verdict is contrary to law and evidence.
This motion was overruled, and defendant excepted.
J. C. McDonald; John C. Nicholls; S. W. Hitch, by Harrison & Peeples, for plaintiff in error,, cited Code, §2211; 62 Ga., 751; Story Ag., §228.
Spencer R. Atkinson, for defendant,, cited 1 Dan. Neg. Inst., §§300, 305; Story Ag., §155; 56 Ga., 258; 70 Id., 595; 14 Id., 124; 29 Id., 709; 1 Id., 429; 8 Mees. & Welsb., 834; 9 Am. Rep., 156; 8 Id., 409; 46 Id., 421; 5 Wall., 189; 11 Mass., 27; Story Ag., §§269, 270; Wood Mast, and Serv., 324, 325; 34 Ga., 355; 36 Id., 454; 65 Id., 711; Story Ag., §§279, 288; 62 Ga., 751; Story Ag., §§302, 303, 304; Code, §2212; 2 Ga., 214; 17 Id., 620; 60 7Id., 387, 158; 52 Id., 448, 570; 67 Id., 595; 49 Id., 599; 70 Id., 152; 47 Id., 470; Cobb\'s Dig., p. 593.
The defendant, signing himself " agt., " drew the bill of exchange on which this suit is brought, on Fox & Burns, payable to the order of J. W. Miller, and by him indorsed in blank. It was admitted on the trial that it was presented for payment, which was refused by the drawees, Messrs. Fox & Burns. The special defence set up was that defendant, in the transaction out of which this paper grew, acted as the purchasing agent of the drawees, and delivered to them the timber bought on their account and for which the bill was drawn, and that these facts were well known both to the payee and the plaintiff, who held the bill under the indorsement, and that it was accepted and received by each of them with the understanding that Fox & Burns were to pay the same and that defendant was not to be held liable thereon.
An attempt was made to establish this defence by verbal evidence, but the offer was rejected by the court, and the plaintiff had a verdict. Besides the usual grounds, a motion was made for a new trial, on account of the rejection of this evidence, which was refused, and the judgment overruling this motion is the error complained of.
It is hardly necessary to remark that, without such evidence as that offered and rejected, no other verdict than that returned could have been found. The case turns, therefore, upon the propriety of repelling the proof offered
We cannot agree with counsel for the plaintiff in error that this case is controlled by Code, §2211, which provides that, where the agency is known and the credit is not expressly given to the agent, he is not personally responsible upon the contract, or that, on such a paper as this, the question, to whom the credit is given, is one of fact that must be decided by the jury. The plea does not allege that thedraft was directly indorsed by the payee to the plaintiff, nor does it show that he obtained title to it in any other way; there is nothing to negative the presumption that he obtained it in the. fair, usual course of trade, before it was presented and dishonored by the refusal of the drawees to pay it. Parol evidence is inadmissible to add to, vary or take from a written contract. This is on its face regular commercial paper, evidently intended to be negotiated, and so drawn as to be put in circulation by the indorsement of the payee; if...
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Burkhalter v. Perry & Brown
... ... and accepted as such. Metcalf v. Williams, supra; Meacham on ... Agency, § 443. The reasoning in Bedell v. Scarlett, ... 75 Ga. 56, at first blush, would seem to militate with this ... view. In that case the plaintiff sued Bedell as maker of a ... ...
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