Cody v. First Nat. Bank of Gainsville

• Decision Date: 25 March 1898
• Citation: 30 S.E. 281,103 Ga. 789
• Parties: CODY et al. v. FIRST NAT. BANK OF GAINESVILLE et al.
• Court: Georgia Supreme Court

30 S.E. 281

103 Ga. 789

CODY et al. v. FIRST NAT. BANK OF GAINESVILLE et al.

Supreme Court of Georgia

March 25, 1898

Syllabus by the Court.

1. It is incompetent to prove by parol the contents of a judgment.

2. Where it is a material subject of inquiry as to when a partnership began to transact business as such, books identified as those of the partnership, and proved to have been correctly kept, offered for the purpose of showing the date of the first entries thereon, are admissible in evidence as constituting parts of the res gest&ae of the matter under investigation.

3. The agent of a corporation is not, in a case to which it is a party, incompetent to testify as a witness in its behalf concerning transactions had between himself, as such agent and another person, since deceased, whose legal representative is the other party to the case.

(a) Though this court, in this case, at the October term, 1893 (93 Ga. 127, 145, 19 S.E. 831), announced a contrary view the question of the bearing of the evidence act of 1889 upon the admissibility of the testimony then under consideration was not really presented for decision.

4. If after an agreement to form a partnership had been made, but before the time fixed by the terms of such agreement for beginning the transaction of the partnership business had arrived, one of the proposed members of the firm borrowed money for his individual use and benefit from a bank, giving therefor a promissory note in the name of the partnership, a subsequent renewal of such note by this member in the partnership name, after the transaction of the partnership business had actually begun, but without the knowledge or consent of his co-partners, was not binding upon the partnership, although the bank took the first note in good faith, and under the belief that it was a valid obligation of the partnership, and in like good faith, and under the belief that it was a valid obligation of the partnership, and in like good faith allowed it to be renewed.

5. The fact that the cashier of such bank had "lost money on" the partner who gave and renewed such note was totally irrelevant to the question whether or not the bank could enforce collection of the renewal note as a debt of the partnership.

6. Evidence that members of a partnership, after beginning the transaction of the partnership business, ratified certain unauthorized acts done in its behalf, and in anticipation of its formation, by one who was to become a member of such partnership, is not proof of the ratification of another unauthorized act so done by such person at a time when he had no power to act in its behalf.

7. The charges complained of were objectionable as being somewhat argumentative and as presenting with too much stress and detail the defendants' contentions of fact.

Error from superior court, Hall county; J.J. Kimsey, Judge.

Action by Laura A. Cody and others against the First National Bank of Gainesville and others. From a judgment for defendants, plaintiffs bring error. Reversed.

E.P. Davis and J.B. Estes, for plaintiffs in error.

M.L. Smith, H.H. Perry, and Dean & Hobbs, for defendants in error.

LUMPKIN P.J.

This case has twice heretofore been before this court. At the October term, 1893, a judgment in favor of the bank was reversed. 93 Ga. 127, 19 S.E. 831. A second trial in the court below resulted adversely to the bank, and a judgment granting it a new trial was affirmed at the March term, 1896, of this court. 99 Ga. 405, 27 S.E. 714. At the trial now under review the bank obtained a verdict, and the plaintiffs are again here alleging that the court erred in overruling their motion for a new trial. We shall briefly discuss the material grounds of the same, stating in connection with each the facts essential to an understanding of what is now ruled.

1. The plaintiffs offered to prove by one Norris that Hopkins, Dwight & Co. had obtained a judgment against the firm of Palmour, Cody & Co. for $800, which Jep M. Cody and the legal representative of J.M.W. Cody had to pay. This evidence was objected to on the ground that it was incompetent to prove by parol the contents of a judgment. The objection was well taken, and properly sustained.

2. One of the principal matters of controversy was as to the time when the firm of Palmour, Cody & Co. actually began the transaction of its partnership business. The plaintiffs, in this connection, offered in evidence a journal and day book which they contended had been sufficiently identified as the only set of books which had been kept by the firm, the purpose in tendering these books being to show that the first entries thereon were made on the 7th day of May, 1889. We are of the opinion that these books, if identified as those of Palmour, Cody & Co., and shown to have been correctly kept would have been admissible as part of the res gest&ae by reason of their connection with the principal fact under investigation. As the judgment below is reversed upon other grounds, it is not now essential to rule whether or not the plaintiffs laid the proper foundation for the introduction of this evidence. Of course, it would be necessary to prove that the books in question were genuine, and had actually been kept by the firm in the transaction of its business; and, in addition, there ought to be proof showing with reasonable certainly that they were accurately kept. If, at the next trial, the plaintiffs, by tendering appropriate evidence, come up to these requirements, the books should be admitted. We do not, of course, mean to intimate that, if admitted, they will establish the plaintiffs' contention that the partnership was not a going concern before the 7th of May, 1889, but simply rule that, if introduced at the next hearing, the books may be considered by the jury for what they are worth. While evidence of this character is in the nature of mere declarations, it is, according to Mr....