Fla. Coca Cola Bottling Co v. Ricker

• Decision Date: 15 June 1911
• Citation: Fla. Coca Cola Bottling Co v. Ricker, 136 Ga. 411, 71 S.E. 734 (Ga. 1911)
• Parties: FLORIDA COCA COLA BOTTLING CO. v. RICKER et al.
• Court: Georgia Supreme Court

136 Ga. 411

71 S.E. 734

FLORIDA COCA COLA BOTTLING CO.

v.RICKER et al.

Supreme Court of Georgia.

June 15, 1911.

(Syllabus by the Court.)

1. Evidence (§ 183^*)—Best and Secondary —Diligence—Discretion of Court.

In order to admit secondary evidence, it must appear that the primary evidence, for some sufficient cause, is not accessible to the diligence of the party tendering such evidence. The question of diligence is one of sound discretion in the court.

(a) In this case there was no error in refusing to admit secondary evidence of a written assignment.

(b) If an assignee sent a written assignment to another state for record, and left it there, with no effort to obtain its return, it was not an abuse of discretion to hold that this did not sufficiently show that it was inaccessible to the assignee, so as to admit parol evidence of its contents at his instance.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*]

2. Corporations (§ 448*)—Contracts Before Incorporation—Assignment.

Where two persons took a written assignment of certain choses in action to themselves as individuals, a corporation not then in existence, but subsequently chartered, with the assignees as corporators, could not sustain a common-law action brought in its own name as the owner of such choses in action, by offering to show by parol that the assignees acted as its agents in taking the assignment.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1789-1792; Dec. Dig. § 448.*]

3. Parties (§ 3*)—Equitable Title.

An action dependent on the ownership by the plaintiff of a legal title to choses in action cannot be sustained by parol evidence tending to show that the plaintiff is the equitable owner of such choses.

[Ed. Note.—For other cases, see Parties, Cent. Dig. § 3; Dec. Dig. § 3.*]

4. Nonsuit.

There was no error in granting a nonsuit.

Error from Superior Court, Bibb County; W. H. Felton, Judge.

Action by the Florida Coca Cola Bottling Company against E. A. Richer and the Commercial & Savings Bank of Macon. Judgment for defendants, and plaintiff brings error. Affirmed.

On March 18, 1908, the Florida Coca Cola Bottling Company sued out an attachment in the superior court of Bibb county against E. A. Ricker on the ground that the defendant was a nonresident. It was levied by serving a summons of garnishment on the Commercial & Savings Bank of Macon. During the term of the superior court to which the writ was made returnable, the plaintiff filed a declaration in attachment, alleging the foregoing facts, and also in substance as follows: On March 15, 1907, H. F. Haley and T. C. Parker, "acting for and in behalf of the Florida Coca Cola Bottling Company, purchased from the said E. A. Ricker, doing business as the Jacksonville Coca Cola Bot tling Company, a certain coca cola bottling plant, especially including open accounts. Amongst other open accounts due to the said E. A. Ricker, and so purchased by your petitioner from the said E. A. Ricker, " were two specified accounts, amounting to $781 and $150, respectively. "Notwithstanding the fact that your petitioner had bought said accounts, the said E. A. Ricker, after having sold the same to petitioner, and after the same had become the property of petitioner, " collected them on March 19th and 29th, respectively. The accounts were the property of the plaintiff, and when so collected Ricker became indebted to it for the amount of such collection. After the summons of garnishment, based on the attachment, had been served on the Commercial & Savings Bank of Macon, Ga., as garnishee, the Commercial Bank of Jacksonville, Fla., filed a bond with security in the superior court of Bibb county, reciting that the garnishee held $3,375 which it had collected upon a draft drawn by Ricker and payable to the order of the Commercial Bank of Jacksonville, and that the Commercial Bank claimed the money thus held. The condition of the bond was that the Commercial Bank of Jacksonville should pay to the plaintiff the sum that might be found due to it by Ricker, upon the trial of any issue that might be formed upon the answer of said garnishee, or that might be admitted to be due in said answer, if untraversed. The plaintiff contends that the filing of this bond alone did not operate as a sufficient claim. The fund in the hands of the garnishee was paid to the Commercial Bank of Jacksonville upon the filing of this bond. That bank asserts some sort of claim or pretended claim against the funds on the ground that Ricker was indebted to it, and deposited as collateral security a bond, which was forwarded for collection. Plaintiff alleges that, if there was any valid claim on the part of the Jacksonville Bank, it was for less than the amount of the fund which was in the hands of the garnishee. "Petitioner has no actual knowledge of the facts recited in the foregoing paragraph, and, although it has repeatedly requested the attorneys of the Commercial Bank of Jacksonville to disclose what amount of indebtedness was claimed by the said bank against said bond, yet petitioner has been unable to get this information, and is now unable to allege the amount of the debt held by the Commercial Bank of Jacksonville, if any debt is so held. It is entitled to know the amount of the debt so claimed, so that it can tender such amount and release the bond." It alleges that the title "to said bond and coupons" was in Ricker at the time of their payment, and that the money paid to the • Commercial & Savings Bank was his money and subject to garnishment. Plaintiff prayed discoveryfrom the Jacksonville Bank, and that it should have judgment against Ricker; that, in the event it should be determined that no claim had been filed by the Commercial Bank of Jacksonville, plaintiff should have judgment against the Commercial & Savings Bank of Macon, Ga., as garnishee; and, in the event it should be determined that a claim had been filed by the Commercial Bank of Jacksonville, plaintiff should have judgment against Ricker, and against the American Surety Company of New York, as surety on the bond filed by the Jacksonville Bank. It does not appear that any service of this declaration was made, though it was stated in the bill of exceptions that Ricker appeared and pleaded.

On the trial, evidence was introduced to show that on March 15, 1907, Ricker assigned to Haley and Parker certain enumerated personal property, including books of accounts, notes, and open accounts, and other assets of the Jacksonville Coca Cola Bottling Company, the "firm name" under which he was doing business; that one of these accounts, for $781, had been paid to the Jacksonville Coca Cola Bottling Company on March 21, 1907, by a check payable to the order of the last-mentioned company and dated March 19th; and that another account, for $150, had been paid by a check dated March 29, 1907, payable to the order of Ricker, indorsed by him, and stamped paid April 3d. Haley was introduced as a witness, and testified that the Florida Coca Cola Bottling Company was chartered on or about April 11, 1907, and as to this there was no conflict. He further testified that, after the assignment from Ricker to him and Parker, they made a written assignment, which he called a deed, to the Florida Coca Cola Bottling Company, "of the things we bought from Ricker." In attempting to account for the nonproduction of the paper, he testified, among other things, as follows: "I filed that deed in Jacksonville. Sending it down for filing was the last I have seen of it. The original never came back into your [Malcolm D. Jones's] office that I know of." When questioned by his counsel, he said he turned the paper over to Malcolm D. Jones. Mr. Jones was then introduced as a witness, and testified that he prepared the conveyance from Haley and Parker to the Florida Coca Cola Bottling Company, and had the paper in his possession; that about that time he was taken sick with fever; that he was not able to swear positively what became of the paper; that he had made diligent search in his office, and could not find it; and that he had asked Haley to make search for it wherever he thought he could find it. Haley was then recalled to the stand, and testified that he had made the search which Mr. Jones had requested him to make. When questioned by the court, he answered that he had sent the paper to Florida for record. The court then asked: "And you have not seen it since?" To this he answered: "I have not seen it since, other than that I am positive I carried it to Mr. Jones. When it came back from record, I carried it to Mr. Jones and gave it to him. I am positive of that. I feel very positive that I got back the original from Jacksonville, certified to as having been recorded. It is three years ago, and when we looked for the paper I couldn't find it at all, and I made it a practice of carrying it to him [Malcolm D. Jones] when anything comes up. I have made a diligent search everywhere it is likely to be found, once when the case came up before, and yesterday again. I have never applied to the clerk in Jacksonville, Fla., for the paper, I was so positive Mr. Jones had it. When it came up before, Mr. Jones was ill, and I was positive he had it. Absolutely I carried all my papers to the office of Malcolm D. Jones. He has had full charge of all this transaction, and I turned over all the papers to him, and have never received that paper back from him." He was again asked: "Did you send the paper to Jacksonville, the transfer from Haley & Parker to the Florida Coca Cola Bottling Company?" To this he answered: "I don't think that I did. Malcolm D. Jones was getting up the bonds. He had entire charge of the bond matter. I don't know whether I sent it, or he, or how it was fixed." The presiding judge held the foundation for the introduction of parol evidence as to the contents of the written transfer from Haley and Parker to the Florida Coca Cola Bottling Company had not been...