Carl S. Strickland Co. v. Union Banking Co.

• Decision Date: 14 February 1931
• Docket Number: 20717.
• Parties: CARL S. STRICKLAND CO. et al. v. UNION BANKING CO.
• Court: Georgia Court of Appeals

157 S.E. 115

42 Ga.App. 645

CARL S. STRICKLAND CO. et al. v. UNION BANKING CO.

No. 20717.

Court of Appeals of Georgia, Second Division

February 14, 1931

Syllabus by Editorial Staff.

Trial judge held not disqualified because he and stockholder of plaintiff corporation were married to sisters.

Trial judge held not disqualified because related by affinity to wife's nephew, who was plaintiff's attorney.

It did not appear that such attorney was employed on a contingent basis or had any other than a professional interest in the litigation.

Bank acquiring note through cashier held not charged with knowledge of another officer who was officer and agent of payee corporation negotiating note to bank, as to defenses of maker.

Evidence of bank's refusal to renew note until payee consented was insufficient to raise issue either as to bank's good faith or ownership of renewal note sued on (Laws 1924, pp 140, 144, § § 66, 89).

Evidence that payee's attorney offered to accept property in part payment of note, not showing transferee was party to offer was immaterial in determining transferee's good-faith holding.

Plaintiff appearing to own note sued on, was presumably "holder in due course," or innocent holder for value (Laws 1924, pp. 136, 138, § § 45, 59).

Without evidence overcoming presumption that plaintiff was holder in due course of note, defenses claimed against payee were inadmissible (Laws 1924, pp. 136, 138, § § 45, 59).

Execution of renewal note without express or implied reservation waived defenses of fraud and failure of consideration known at time to defendants sued on note.

Error from Superior Court, Bacon County; M. D. Dickerson, Judge.

Action by the Union Banking Company against the Carl S. Strickland Company and others. Judgment for plaintiff, defendants' motion for new trial was overruled, and defendants bring error.

Affirmed.

Andrew J. Tuten and T. J. Townsend, both of Alma, for plaintiffs in error.

Quincey & Quincey, of Douglas, for defendant in error.

Syllabus OPINION.

BELL J.

1. The trial judge was not disqualified because he and a stockholder of the plaintiff corporation were married to sisters. Lee v. Jones, 161 Ga. 829 (1), 132 S.E. 79; Central R. Co. v. Roberts, 91 Ga. 513 (1), 18 S.E. 315.

2. While the judge was related by affinity to a nephew of his wife (James v. Douglasville Banking Co., 26 Ga.App. 509, 106 S.E. 595), the fact that this nephew appeared as attorney for the plaintiff did not serve to disqualify the judge; it not appearing that such attorney was employed on a contingent basis or had any other than a professional interest in the litigation. Carson v. Blair, 31 Ga.App. 60 (2), 121 S.E. 517; Young v. Harris, 146 Ga. 333, 91 S.E. 37.

3. The fact that the officer and agent of the payee corporation who negotiated the note to the plaintiff bank was also an officer of the bank did not operate to charge the bank with any knowledge which he may have possessed as to defenses in favor of the maker, where the bank acted, not through such common officer, but through its cashier, in acquiring the note. Taylor v. Felder, 3 Ga.App. 287 (1), 59 S.E. 844; Reed v. West Loan & Trust Co., 22 Ga.App. 397 (2), 95 S.E. 1002; Habersham Bank v. Merritt, 157 Ga. 695 (2), 122 S.E. 37; Guaranty Investment Co. v. Athens Engineering Co., 152 Ga. 596 (1), 110 S.E. 873. In such a case the representative of the indorser or transferor is not acting in a dual capacity, and the rule as to imputing to the principal the knowledge of a person so acting is inapplicable. Morris v. Georgia Loan Co., 109 Ga. 12 (2), 34 S.E. 378, 46 L.R.A. 506; Town of Douglasville v. Mobley, 169 Ga. 53 (1 b), 149 S.E. 575.

4. The note sued on being a renewal of a prior instrument of like tenor and effect, evidence that the plaintiff's cashier would not agree to such renewal until the payee indorser had first consented, and that the new note was then executed and indorsed in like manner as the previous one, was insufficient to raise any issue either as to the plaintiff's ownership of the note in suit or as to the good faith of its holding. It was entirely proper to consult the payee, in order to insure its indorsement of the new paper. First National Bank v. Messer, 136 Ga. 226 (2), 227, 71 S.E. 148; Ennis v. Reynolds, 127 Ga. 112 (1), 56 S.E. 104; Ga Laws 1924, pp. 126, 140, 144, § § 66, 89, Michie's Code of 1926, § § 4294 (66), 4294 (89). Nor would the case be altered as to these questions by additional evidence that an attorney purporting to speak for the payee had offered to accept certain property in part payment of the note; it not appearing that the plaintiff had authorized, or was in any way a party to, such offer. Harris v. Bank of Little Rock, 107 Ga. 407, ...