English v. Bank of State of Ga.

• Decision Date: 09 March 1886
• Citation: 76 Ga. 537
• Parties: ENGLISH v. THE BANK OF THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

76 Ga. 537

ENGLISH v. THE BANK OF THE STATE OF GEORGIA.

Supreme Court of Georgia.

March 9, 1886

March Term, 1886.

[This case was argued at the last term, and the decision reserved.]

A bank held certain jewelry. In order to get possession of it and carry it to his store, one S. obtained a written guaranty from the president, who was also the principal stockholder of the bank, and one E., to the bank, on March 22, 1877, one mode of discharging which was by " the faithful return of said goods." They were returned to the bank and placed in its vault under the control of its cashier. S desired to obtain them, in order to offer them for sale in another city, but the bank cashier refused to allow him to have them without E. came down to the bank and made a guaranty in person, or without his signature. E. wrote the following note to the president of the bank, dated March 30 " Mr. Sharpe informs me that he wants to go to Augusta and take your goods; any arrangement you make with him for us will be satisfactory to me," etc. The president thereupon agreed in parol that he and E. would be jointly responsible to the bank. The president took a receipt from S to himself and E. for the goods, providing that the goods should be sold for their account, and that S. would pay over the proceeds. The goods were delivered to S., who absconded with them. The bank brought suit against its president and E., and a verdict was rendered in its favor over the defence of E.:

Held, that, whether the contract of March 30th be considered as reviving the written contract of March 22d, or as making a new contract of guaranty, as between the guarantors and the bank, the parol agreement of the president was necessary to make it a complete contract. His co-surety was entitled to a valid binding contract, on which he could require contribution; but the parol agreement of the president with the bank was not sufficient for that purpose, and therefore E. would not be bound.

( a. ) The charge set out in the 7th ground of the motion and the refusal to charge as requested in the 4th and 5th grounds, as well as the general view of the law of the case indicated in the charge, in so far as contrary to this decision, were erroneous.

( b. ) The double agency of the president, at once representing the interest of the bank and acting to bind E., is not valid.

( c. ) As the record now discloses the facts, the verdict is contrary to the evidence.

( d. ) E. stands in this transaction as an accommodation endorser or surety.

Contracts. Principal and Surety. Guaranty. Principal and Agent. Before Judge HAMMOND. Fulton Superior Court. March Term, 1885.

The Bank of the State of Georgia brought suit against J. W. English and F. M. Coker, alleging that one George Sharpe, Jr., sold to the bank a lot of watches, diamonds and jewelry; that he was anxious to have the privilege of selling these articles at retail, paying to the bank the cost price with a reasonable addition thereto, and retaining the balance for his services; that the bank was willing to let him have the goods, provided English and Coker would bind themselves to see that the property or the proceeds of its sale was returned to it; that they wrote to the bank the following letter:

ATLANTA, GA., March 22, 1877.

Bank of the State of Georgia, Atlanta, Georgia:

At our request, you will deliver to George Sharpe, Jr., the two bill of goods attached to this paper, being fully described in said bills consisting of diamonds, watches, jewelry, etc., and amounting in the aggregate to $10,764.70, the same being the property of said bank, and paid for with its money, to sell on commission, and held in trust for our account and risk, and we agree to and hereby bind ourselves for the faithful return of said goods or the money for them as sold, on demand, or so much as may be due said bank on the above stated goods.

F. M. COKER,

" J. W. ENGLISH."

That upon the faith of this guaranty the property was delivered to Sharpe; that on March 30, Sharpe desired to take the goods to Augusta, and the bank consented thereto, provided Coker and English also consented; that Coker consented verbally, and English wrote to Coker, who was president of the bank, the following letter:

" MARCH 30, 1877.

Mr. F. M. Coker:

DEAR SIR-Mr. Sharpe informs me that he wants to go to Augusta and take your goods; any arrangement you make with him for us will be satisfactory to me. I am very busy or I would see you in person.

Yours truly, J. W. ENGLISH."

That on the faith of this letter, and with Coker's verbal statement of consent, the bank agreed for Sharpe to take the goods in trust to sell upon commission; that Sharpe absconded with the property, and thereupon suit was brought against Coker and English.

The evidence is sufficiently stated in the decision.

The jury found for the plaintiff $5,848.14, principal, and $3,702.13, interest. By consent of plaintiff's attorney, $363.38 of the interest was written off. Defendant, English, moved for a new trial, on the following among other grounds:

(4.) Because the court erred in refusing to give the following charge to the jury: " The plaintiff sues on the agreement of March 22d and March 30th, 1877. If you find from the evidence that the goods were delivered to Sharpe under the agreement of March 22, and that afterwards Coker got uneasy, and the goods were returned to the bank, that agreement would be at an end, and not be longer binding, and there could be no recovery on that agreement; and as the suit is based on that agreement, there can be no recovery in this case."

(5.) Because the court refused to give the following charge to the jury: " The suit is based on the two agreements of March 22d and March 30th, and there is no allegation that the goods were delivered to Sharpe on any other agreements, and there can be no recovery on any other agreements. If Coker's agreement to be responsible to the bank was a verbal agreement, it would be void and not binding on Coker, and if Coker was not bound under the agreement, then English would not be bound."

(7.) Because the court charged as follows: " If the liability of English on that obligation became extinct by the return of the goods to the bank, then, if the bank afterwards delivered the goods to Sharpe to carry to Augusta to sell for its account, it would be your duty to inquire whether English's liability became revived by reason of anything that occurred between the parties. If you believe from the evidence that English gave written authority to Coker to make any arrangement for him that he might see proper with Sharpe, in reference to taking the goods to Augusta, and if Coker made an arrangement with the bank, for himself and English, by which the goods were delivered to Sharpe to take to Augusta, under the authority granted him by English in that writing, and if he agreed with the bank for himself and English that the obligation which had been given by him and English to the bank on the 22d of March, 1877, was to be and remain of force, and under that the goods were delivered to Sharpe by the bank to be taken to Augusta and sold by him, then that obligation would be revived and would be in force, and if Sharpe absconded with the goods, and the bank thereby suffered loss, it could recover its damages out of Coker and English."

The motion was overruled, and English excepted.

HOPKINS & GLENN, for plaintiff in error.

JULIUS L. BROWN; CANDLER, THOMSON & CANDLER, for defendant.

JACKSON Chief Justice.

A suit was brought by the Bank of the State of Georgia against James W. English and F. M. Coker to answer to certain matters of complaint and indebtedness arising thereon by reason of certain obligations of suretyship or guaranty incurred by English and Coker in behalf of Geo. Sharpe, Jr., in the sale of certain jewelry for the said bank, turned over for sale to Sharpe by the bank upon said guaranty, that the proceeds of the sale, or so much as may be due said bank, or the jewelry itself should be returned to the bank. English pleaded that he was not so indebted to the bank, and upon this issue the jury found against him. Thereupon, certain errors of law on the charge of the court and the refusals to charge are made on the denial of a new trial, and these bring the case here.

Coker, the other surety, is the president and controlling stockholder of the bank, and acted with the bank in the suit, and of course made no defence and does not complain of, or except, to, the verdict, which is against both.

The declaration sets out the facts at length and with particularity, setting out the writing signed by English and Coker on the 22d of March, 1877, making the guaranty above alluded to, and a written note or authority from English to Coker, dated the 30th of March, 1877, to the effect that Sharpe wished to take the goods to Augusta, and that any arrangement he, Coker, made with him for the two would be satisfactory to the writer; and other averments that, upon the faith of that letter and of Coker's verbal statements of his consent, it (the bank) consented that said Sharpe might take the goods to Augusta, and that English and Coker, since Sharpe absconded, have time and again said that he had gone to parts unknown, and that they are unable to re-deliver the goods, and yet refuse to pay their value, and that they have often refused, and still refuse, to pay, and that by virtue of said guaranty and of the premises, an action has accrued to it to recover from them ten thousand seven hundred and sixty-four and seventy one-hundredths dollars, besides interest from said March 30, 1877; wherefore petitioner prays process to answer said matters.

So that it appears from the declaration that the suit is based upon the two transactions of...