Davis v. Farmers' & Traders' Bank
| Decision Date | 14 February 1927 |
| Docket Number | 17245. |
| Citation | 136 S.E. 816,36 Ga.App. 415 |
| Parties | DAVIS v. FARMERS' & TRADERS' BANK. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In the present action against a bank to recover on its alleged liability for a deposit, the plaintiff undertook to plead against an anticipated defense of payment, and to that end alleged that a conspiracy existed between the bank and two individuals to have the plaintiff, after making his deposit to accept from the bank at its place of business money to be delivered to those individuals under circumstances so planned and arranged as to afford ground for a contention later to be made by the bank that the plaintiff in receiving such money was accepting payment of his deposit. Held, that it was permissible for the plaintiff, after alleging the existence of the conspiracy, to set forth in his petition the circumstances under which he became acquainted with such individuals, and to recount in detail the events in which they were the actors in drawing him into a scheme laid by them and their confederates to defraud him, and to show that such acts culminated in a situation in which the defendant bank, by its cashier, actively participated, and by which the plaintiff was victimized in the defendant's banking house, in the manner above indicated.
Where a paragraph of the petition is demurred to specially for want of a copy of a writing or document therein referred to, and the court in sustaining the demurrer allows the plaintiff a named period in which to amend, even though the plaintiff may altogether lose the right to amend the paragraph, if he offers no amendment in the time allowed, yet, if an amendment setting forth a copy of such instrument would be germane to some other paragraph of the petition, and the plaintiff offers to amend accordingly, the court should allow him to do so.
The plaintiff's allegation as to what he supposed was the character and effect of a certain transaction was relevant as showing that he had never assented to the transaction in a different sense, as the defendant claimed he had done, and was not objectionable as a conclusion of the pleader.
When in a legal investigation, conversations out of the presence of the party sought to be charged constitute facts to explain conduct and ascertain motive, they are admitted in evidence not as hearsay, but as original evidence.
Under the pleadings and the evidence, the plaintiff was entitled to recover as a matter of law, unless he had been paid. Whether he had been paid or not was a jury question, under the evidence. The court erred in granting a nonsuit.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Action by N. L. Davis against the Farmers' & Traders' Bank. Judgment for defendant, and plaintiff brings error. Reversed.
Wm. C Henson, James W. Austin, and W. Paul Carpenter, all of Atlanta, for plaintiff in error.
Smith, Hammons & Smith, of Atlanta, for defendant in error.
Davis brought suit in Fulton superior court against Farmers' & Traders' Bank, alleging that the bank was indebted to him in the sum of $5,500 on account of a deposit which he made in the bank, and which, according to his contentions, the bank had never repaid. The plaintiff in his petition alleged that, when he demanded payment, the bank claimed that it had already paid him, and, anticipating that the suit would be answered by a plea of payment, proceeded to set forth facts to show the falsity of any such claim. To that end the petition averred that the bank, through its cashier, had conspired with one Grant and one Douglas, members of a notorious "bunco gang," to have the plaintiff come to the bank and get from its cashier certain money for delivery by him to Grant, or to Grant and Douglas, under circumstances which would lend color and plausibility to the subsequent claim of the bank that the plaintiff in so receiving the money was accepting payment of the amount which he had deposited, and for which the bank was indebted to him. The petition alleged that the defendant bank "conspired and connived with and aided and abetted said gang and the members thereof in all their swindling operations whenever the services of a bank became necessary to the furtherance of their fraudulent schemes, both in the attempt upon your petitioner and in cases of other victims by them defrauded." The petition also set forth the circumstances under which the plaintiff became acquainted with Grant and Douglas, and recounted in detail a succession of events in which they were the actors in drawing the plaintiff into the meshes of a scheme laid by them and their confederates to defraud the plaintiff of his money; they having previously ascertained that the plaintiff had $5,500 on deposit in a bank in Indiana. Among such antecedent transactions was a proposal by them (Grant and Douglas) that the plaintiff bring his money to Atlanta and deposit it in a local bank, in order that the plaintiff, by the use of his credit "at said bank," might aid the other two in closing an important deal, to the great profit and advantage of the plaintiff and themselves. Accordingly Grant took the plaintiff and Douglas in a taxicab and drove them to the Farmers' & Traders' Bank, and introduced the plaintiff to Mr. Carter, the bank's cashier. The plaintiff thereupon opened an account with the bank by delivering to it items on the bank in Indiana in the aggregate of $5,500.
The petition proceeded next to set forth that in a few days Grant and Douglas induced the plaintiff to go with them to the bank for the purpose of obtaining money which the plaintiff understood to be money due or belonging to Grant, or Grant and Douglas, alleging the conversations that passed among the three of them as they approached the bank, and disclosing that the plaintiff was induced to enter the bank for the purpose of receiving money from the bank to be delivered to Grant and Douglas in a transaction solely between the bank and these two.
The defendant filed a general demurrer to the entire petition on the ground that it set forth no cause of action. This demurrer was overruled, and to the judgment overruling it no exception has been taken. The defendant filed, and the court sustained, a special demurrer to several paragraphs of the petition containing allegations as to transactions and conversations between the plaintiff and Grant and Douglas which occurred out of the presence of the bank or the bank's cashier, and which are described generally as above; the grounds of the demurrer being that the allegations of each and all of these paragraphs were irrelevant and immaterial; that the bank was not liable for any fraudulent practices on the part of its cashier, the same being beyond the scope of his employment; and that there was no complicity or conspiracy charged against the bank which would justify such allegations as against it. Paragraph 37 of the petition alleged that the defendant's cashier took the plaintiff's deposit, and gave him as evidence thereof a deposit slip for $5,500. The court sustained a demurrer to this paragraph, which called for a copy of the deposit slip. The plaintiff, however, was given 10 days in which to amend. Paragraph 42 contained the allegation:
"All of which the plaintiff supposed was in furtherance of an arrangement between Grant and the cashier for the giving of Grant's money to him."
This allegation had reference to the delivery of money to the plaintiff by the cashier on the occasion when the plaintiff went into the bank and obtained money at the instance of Grant and Douglas, some days after the plaintiff had made his deposit. The court sustained a special demurrer to the averment just quoted, upon the ground "that said allegation embodies a conclusion of the pleader, unsupported by allegations of fact," and upon the further ground that the plaintiff's suppositions were irrelevant and immaterial.
Paragraph 50 of the petition contained a count for the recovery of attorney's fees. This paragraph was demurred to as being generally insufficient, and the demurrer was sustained. At the trial of the case, which was more than 10 days after the judgment on the demurrers, the plaintiff offered an amendment setting forth a copy of the deposit slip. The plaintiff at the same time offered a further amendment, alleging a conspiracy between the bank and Grant and Douglas in relation only to the matter of inducing the plaintiff to become the medium of a transfer of money from the bank to Grant under circumstances affording a pretext for a claim that the bank thus had paid the plaintiff the amount of his deposit. The court refused to allow either of the above amendments.
The trial resulted in a nonsuit, and the plaintiff has brought the case to this court for review. The exceptions are to the judgment sustaining the special demurrers as stated above, to the refusal of the court to allow the amendments, to the judgment of nonsuit, and to a certain ruling upon the admission of evidence. The last-mentioned ruling was to exclude the testimony of the plaintiff as to what was said by Grant to induce the plaintiff to go into the bank alone to receive the money which the bank claims was a payment to him, and which he claims was intended by the bank to be delivered to Grant.
1. Counsel for both parties concede that the action is ex...
To continue reading
Request your trial
-
Stinespring v. Fields
...which explain conduct or ascertain motives are admissible in evidence, not as hearsay but as original evidence. Davis v. Farmer etc. Bank, 36 Ga.App. 415(4), 136 S.E. 816; Willis v. Henry, 95 Ga.App. 593(2), 98 S.E.2d 150; Fuller v. Fuller, 107 Ga.App. 429, 435, 130 S.E.2d 520. The trial co......
-
Bruce v. State
...to explain conduct and ascertain motives (,) are admissible under Code § 38-302 as original evidence. See Davis v. Farmers & Traders Bank, 36 Ga.App. 415(4), 136 S.E. 816 (1927); Bryant v. State, 191 Ga. 686, 698(14), 13 S.E.2d 820 (1941); Phillips v. State, 206 Ga. 418, 419(3), 57 S.E.2d 5......
-
Davis v. Bank, (No. 17245.)
...36 Ga.App. 415136 S.E. 816DAVIS.v.FARMERS' & TRADERS' BANK.(No. 17245.)Court of Appeals of Georgia, Division No. 2.Feb. 14, 1927.(Syllabus by the Court.)[136 S.E. 817]Error from Superior ... ...
-
Blanton v. Marchbanks
...of mind where that is an issue, these facts are admissible in evidence, not as hearsay, but as original evidence. Davis v. Farmers, etc., Bank, 36 Ga.App. 415(4), 136 S.E. 816; Willis v. Henry, 95 Ga.App. 593(2), 98 S.E.2d 150. It follows that upon the trial of the issues in this case, such......