Heitmann v. Commercial Bank Of Savannah

• Decision Date: 12 May 1910
• Docket Number: (No. 2,502.)
• Citation: 68 S.E. 51,7 Ga.App. 740
• Parties: HEITMANN et al. v. COMMERCIAL BANK OF SAVANNAH.
• Court: Georgia Court of Appeals

68 S.E. 51

(7 Ga.App. 740)

HEITMANN et al.

v.COMMERCIAL BANK OF SAVANNAH.

(No. 2, 502.)

Court of Appeals of Georgia.

May 12, 1910.

(Syllabus by the Court.)

1. Evidence (§ 462^*)—Parol Evidence—Contradicting Written Instrument.

When a written contract expressly recites that it is made for one purpose, it is not competent (in the absence of a claim of fraud, accident, or mistake) to show by parol that it was made for another inconsistent purpose.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2134; Dec. Dig. § 462.*]

2. Appeal and Error (§ 1203*) — Proceedings After Remand — Merger — Reversal as to Certain Defendants.

Under the facts presented, there was no error in holding that the present complaining defendants were not discharged from liability by the action that had been taken in the case as to other joint obligors on the instrument sued on.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1203.*]

3. Principal and Agent (§ 123*)—Proof of Agency—Declarations.

The court did not err in directing a verdict in the plaintiff's favor.

(a) While it is permissible to prove as a part of the res gesæ of a transaction that one of the parties purported to act as the agent of a third person, yet his declaration to that effect is not of sufficient probative value to establish the agency, unless there be further proof, direct or circumstantial, to show that he was in fact an agent, or that his acts as agent had been ratified by the alleged principal.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. § 123.*]

Error from City Court of Savannah; Davis Freeman, Judge.

Action by the Commercial Bank of Savannah against J. H. Heitmann and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Osborne & Lawrence, for plaintiffs in error.

Adams & Adams and U. H. McLaws, for defendant in error.

POWELL, J. This case has been before this court previously. See Heitmann v. Commercial Bank, 6 Ga. App. 584, 65 S. E. 590. It will not be necessary to repeat the facts there stated; indeed, what is here said is to be read in connection with what is there said. The point decided when the case was here before was that there was error in disallowing a plea which set up that the note and the accompanying letter had never been delivered to or accepted by the bank as a complete, final contract, but was merely to be held by them, in the nature of an escrow, until another person, named Peeples, should affix his signature. It was further held that such a plea did not contradict the terms of the writing, but that the defendants would not be allowed to set up a state of facts which contradicted either the letter or the note. At the trial the defendants offered an amendment to their plea. First, they pleaded that the note was without consideration, in that it was given merely as collateral security for a past-due indebtedness, owing by the Sand Lime Brick Company to the plaintiff. Even if this plea were otherwise meritorious, it was in direct contradiction to the statement in the letter that the note sued on was given in payment of this past indebtedness, thus becoming an original obligation based on a lawfully recognized consideration.

2. The plea further set up that the defendants Heitmann, Knight, and Manning were discharged from liability, because the plaintiff had dismissed the action as to one Goette, and had also in the present suit procured judgment against O'Connell and four others of the signers of the note, without procuring judgment against the present plaintiffs in error. It should be noticed that this came about by reason of the fact that, while originally the judgment was against all of these defendants, except Goette (who had died pending the action and who was stricken on that account), this court granted a new trial as to Heitmann, Knight, and Manning only.

The Civil Code of this state (section 5041) expressly authorizes a dismissal as to a defendant dying pending the action, without affecting the liability of the other defendants. Savannah Bank v. Purvis, 6 Ga. App. 275, 65 S. E. 35. Nor do we think that under the facts of the case such a merger of the liability on the note resulted from this court's reversing the judgment only as to three of the defendants and its granting as to them a new inquiry as to preclude the plaintiff from proceeding on the new hearing to establish their liability and to have a judgment in the action rendered against them also. Cf. Ellis v. Bone, 71 Ga. 466.

3. The main point insisted on, however, isthat the court erred in directing a verdict in favor of the plaintiffs, notwithstanding the evidence offered by the defendant (in support of the plea which this court, when the case was here before, held was allowable) to prove the agreement that the note and letter were never formally delivered, and were by mutual agreement of the parties never to become a completed contract "until Peeples signed. Some of the defendants offered testimony that the note was presented to...