Fowler v. Gate City Nat. Bank

• Decision Date: 02 November 1891
• Parties: Fowler v Gate City Nat. Bank.
• Court: Georgia Supreme Court

13 S.E. 831

88 Ga. 29

Fowler v Gate City Nat. Bank.

Supreme Court of Georgia

November 2, 1891

Syllabus by the Court.

1. Where the drawee of a bill of exchange writes his name across the face of the bill, the statute requiring acceptance to be in writing is complied with, the legal significance of such an act being that the bill is thereby accepted.

2. The indorsee of a bill of exchange, in the absence of any notice on the subject, is entitled to treat the acceptor as the real debtor, and is under no duty to such acceptor to retain, or render available, collateral securities for the payment of the bill received from the payee and indorser thereof.

3. A plea of non est factum must be sworn to, and generally the affidavit must be made by the defendant, and not by an agent. The exception, if any, is stated in section 3449 of the Code.

4. A plea which neither admits nor denies that the plaintiff herself, or any one as her agent, accepted the bill sued on but sets up merely that the acceptance is not binding on her for the reason that said act was not in her legitimate business or for her benefit, but for the benefit of a third party, and without authority, consent, or ratification on her part, is insufficient.

Error from superior court, Fulton county, Marshall J. Clarke Judge.

Action by the Gate City National Bank against May E. Fowler and others. Judgment for plaintiff, and defendant Fowler brings error. Affirmed.

The following is the official report:

The Gate City National Bank sued the Tolleson Commission Company as drawer and indorser, May E. Fowler, doing business under the name and style of Fowler & Co., as acceptor, and E. L Fowler as acceptor, of certain drafts or bills. Mrs. Fowler pleaded the general issue, and also a special plea denying that she composed the firm of Fowler & Co. On the trial of the case she offered the following plea: "If the jury should believe that the firm of Fowler & Co. was composed of this defendant, and that E. L. Fowler was her agent, then, in that event, she says that the writing of the name of Fowler & Co. on the face of said drafts or bills by said E. L. Fowler is not binding on her for the reason that said act was not in the legitimate business of this defendant, nor was it for her benefit, but for the benefit of a third party, and was without authority, consent, or ratification on her part. For further plea, this defendant says that the drafts or bills sued on were secured by bills of lading representing cars of grain, flour, and other stuff, turned over to plaintiff by J R. Tolleson, representing the Tolleson Commission Company, as this defendant is informed; and if the plaintiff redelivered them to Tolleson, and he realized the money on the same, and it was not applied to these drafts, such conduct on the part of the plaintiff would discharge this defendant, she not consenting to the same; and, if the same is still in the possession of plaintiff, the railroad companies issuing the same are liable to plaintiff on said bills of lading; and before this defendant could be held liable to plaintiff, said bills of lading should be brought into court, and tendered this defendant, as in law, if liable, she has a lien on the same." On motion of plaintiff, this plea was stricken by the court for insufficiency and as setting up no legal defense. To this ruling she excepted. After this plea was stricken she offered the...