Daniels v. Barnett

• Decision Date: 31 July 1848
• Docket Number: No. 26.,26.
• Citation: 5 Ga. 245
• Court: Georgia Supreme Court
• Parties: Francis Daniels, plaintiff in error vs. Kyle & Barnett, defendants in error.

5 Ga. 245

Francis Daniels, plaintiff in error vs. Kyle & Barnett, defendants in error.

No. 26.

Supreme Court of the State of Georgia

JULY TERM, 1848.

Assumpsit, tried before Judge Alexander, Muscogee Superior Court, May Term, 1848.

The action in this case was predicated upon a check, of which the following is a copy:

"Columbus, January 15, 1842.

Bank of Columbus, pay to L. Gambrill or order, five hundred and twenty-four dollars.

KYLE & BARNETT.

$524.00.

Indorsed, L. GAMBRILL."

The check having been transferred by indorsement to the plaintiff in error, the suit was brought in his name.

Upon the trial, the check, and also the protest made upon its presentation for payment, and the non-payment, were successively read in evidence to the jury, when the plaintiff closed.

The defendants having pleaded specially, that when said check was drawn on the said Bank of Columbus, to wit: on the fifteenth day of January, 1842, the said Bank was solvent, and paid checks thereon promptly, on presentation; and that before the presentation thereof, to-wit: on the first day of April, 1842, the said Bank failed, and suspended payment, with the funds of these defendants on deposit, to an amount more than sufficient to pay said check: and that by the failure to present said check, these defendants were injured, to the extent of the total loss of said funds—proceeded to the proof of their plea.

They proved from the books of the bank, that the defendants. at the date of the check, had on deposit in said Bank over two thousand dollars. The Clerk, who identified and proved the books, did not know what funds defendants deposited. It appeared also, from the books, that the defendants had checked out all of their deposits except $524.38, which last amount appeared still to remain to their credit. The witness, (the Clerk,) farther stated that he left said Bank as Clerk, about the 7th January, 1842; that the Bank had been in a state of suspension some time before that, and believed that It had resumed specie payments on the first of January, 1842, under the Act of the Legislature of 1841; and that about the time he left said Bank it paid specie upon some of its demands; though specie was not demanded upon checks. The counsel for plaintiff proposed to ask the witness if (at the date of the check sued on) there was hanging at the counter of the Bank of Columbus, a notice to the public that it would receive Planters and Mechanics\' Bank bills, and other depreciated paper on deposit, and that it was paying out the same to its depositors, who should deposit such paper, which was objected to by defendants\' counsel, and the objection was sustained by the Court below, and decided to be improper. To which decision the counsel for the plaintiff excepted.

Col. Seaborn Jones was then sworn on the part of the defendants, and stated, the Bank resumed specie payments on the 1st January, 1842, under the requirements of the Act of the Legislature, of 1841, on that subject, and that said Bank paid specie, but did not remember whether upon the bills of said Bank or checks drawn upon it, but that it paid all presented by him, either in specie or specie funds, but did not remember whether he presented bills or checks, and that the Bank suspended specie payments again in March 1842.

The plaintiff then introduced Sterling F. Grimes as a witness, who testified that the Bank, in January, 1842, received Planters and Mechanics' Bank bills, Central Bank bills, and Alabama Bank bills in payment of notes, (sent to said Bank for collection,) payable in New York, with current rates of exchange, and charging, 12 1-2 to 15 per centum premium, as the current rate of exchange upon New York. Augustus Peabody was also introduced as a witness on part of plaintiff, who testified that he went into said Bank of Columbus as Clerk, within four or five days after John D. Carter, the former Clerk, left said Bank as Clerk,) which was a short time be-fore the middle of January, 1842. and that he remained in said Bank as Clerk until it finally suspended specie payments altogether and that while he was in said Bank as Clerk, it did not pay specie upon checks drawn upon said Bank by depositors, but paid checks in Planters and Mechanics\' Bank bills and other depreciated bills, and that it paid specie only upon its own bills. It was also in evidence that the plaintiff resided out of the State of Georgia.

The cause was submitted to the jury upon the foregoing evidence, when the plaintiff's counsel requested the Court to charge the jury, that if they believed from the evidence that the Bank of Columbus was not paying specie upon checks drawn upon it, at the time of the drawing of said check and afterwards, but paying them in currency at 12 1-2 to 15 per centum discount, then the defendants have not sustained loss, or if any, only the difference of the depreciated currency at the date of the check, and at the time of the presentation. That the defence, if good at all, would be good only between the drawers and the drawees, and not against the plaintiff, who is the indorser and bona fide holder without notice, and for a valuable consideration. All which the Court refused to charge, to which refusal the plaintiff's counsel excepted.

The Judge below, in his certificate to the Bill of Exceptions certifies to the additional fact, that he instructed the jury, "if the defendants had on deposit in said Bank, money or any effects of value at the time of the drawing said check, and the holder thereof failed to present the same for payment within reasonable time, and the Bank failed between the time of drawing and the presentation thereof, then the drawers were discharged from liability on said check, to the extent of the injury they may have sustained by reason of such failure."

John Schley, for plaintiff in error.

Jones, Benning & Jones, and Holt, for defendants.

Points submitted for plaintiff in error.

The first ground taken, that the Court erred in deciding that the plaintiff's counsel could not ask the defendants' witness, John D. Carter upon the cross-examination, "If at the date of the checksued on, there was hanging at the counter of the Rank of Columbus, a notice to the public that it would receive Planters and Mechanics\' Bank bills and other depreciated paper on deposit, and that it was paying out the same to its depositors who should deposit such paper." Best on presumptions of Law and Trust, p. 212 to 210. 1st Greenleaf\'s Ev. sec. 53.

The second ground taken, that the Court erred in refusing to charge the jury, "That if they believe from the evidence that the Bank of Columbus was not paying specie upon checks drawn upon it, at the time of the drawing of said checks sued on, and afterwards, but paying them in currency at 12 1-2 to 15 per centum discount, that the defendants have not sustained loss." Ex parte Brown, 2 Story Rep. 502 to 515. Story on Promissory Notes, &c. sec. 497 and 498. Story on Bills, sec. 350. Wallace vs. McConnel, 13 Peters' Rep. 130.

The third ground taken, that the Court erred in refusing to charge the jury, "That if they believe from the evidence that the Bank of Columbus was not paying specie upon checks drawn upon it at the time of the drawing of said check and afterwards, but paying them in currency at 12 1-2 to 15 per centum discount, and that if the defendants sustained any loss, that it could only be the difference between the value of the depreciated currency at the date of the check, and at the time of the presentation." Ex parte Brown, 2 Story Rep. 502 to 510.

The fourth ground taken, that the...