M. J. Atkins & Co. v. Hcobb

• Decision Date: 31 January 1876
• Citation: 56 Ga. 86
• Court: Georgia Supreme Court
• Parties: M. J. Atkins & Company, plaintiffs in error. v. J. L. & R. H.Cobb, defendants in error.

56 Ga. 86

M. J. Atkins & Company, plaintiffs in error. v. J. L. & R. H.Cobb, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

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Pleadings. Indorsement. Negotiable instruments. Sales. Presumptions. Warranty. Evidence. Before Judge Tompkins. Randolph Superior Court. May Term, 1875.

Reported in the opinion.

A. Hood; H. & I. L. Fielder, for plaintiffs in error.

B. S. Worrill, for defendants.

Bleckley, Judge.

1. The action was against the acceptors upon a bill of exchange, and was in the short form allowed by the Code, section 3391. The bill was payable to the order of the drawers, and no indorsement by them was alleged or set out in the body of the declaration. A copy of the bill as accepted, and a copy of an indorsement thereon by the payees to the plaintiffs were annexed to the declaration, and these, we think, constituted a part of the declaration itself. Our brief statutory declarations are not intended to be complete without full copies of the instruments declared upon, and such copies may always be used in aid of informal or defective allegations. Taking the whole together, there was a cause of action set forth in this declaration in favor of the plaintiffs against the defendants, and the demurrer was therefore properly overruled: See Jennings v. Wright & Company, 54 Georgia Reports, 537; Bank of Americas v. Rogers, 55 Ibid., 29.

2. When the bill was tendered in evidence it had upon it two indorsements from the payees, one to Gunn "for collection, " and the other to the plaintiffs "for value received." *The former was without date; the latter was dated four clays before the present action was brought. An indorsement for collection is, as against the indorse, a mere power of attorney to receive the money. It imports an agency to collect, and nothing more. The bill remains the property (in equity, at least,) of the indorse; and when it is returned to him, he may sue and recover upon it in his own name without erasing the indorsement: 2 Parsons on Notes and Bills, 442; 22 Georgia Reports, 24. If, instead of bringing suit, he negotiate the hill, and indorse it over for value, the second indorsement necessarily revokes the agency created by the first. It cancels the first indorsement as effectually as could be done by erasing it. The indorsement for collection did not, therefore, stand in the way of the plaintiff's title to the bill, under the indorsement made to them for value; and the objection to receiving the bill in evidence was not sustainable.

3. The title of the holder of negotiable paper cannot be inquired into further than is necessary for the protection of the defendant or to let in the defense which he seeks to make: Code, section 2789; 31 Georgia Reports, 300. The court charged the jury that the plaintiffs, having taken the bill after maturity, stood in the same position as the payees in reference to the defense set up and the equities between the parties. In connection with this charge, it was altogether proper for the court to instruct the jury as it did, to the effect that the defendants had no concern with any fraud intended by the payees in parting with the bill, or by the plaintiffs in procuring it, or with the motive, purpose or consideration involved in the transfer. The indorsement was regular; the payees were making no contest with the plaintiffs, and the defendants had no right to make any, on the bona fides of their title. It was wholly irrelevant to the issue on trial whether the plaintiffs took the bill on speculation, as the defendants' counsel contended, or not.

4. In like manner, it was no concern of the plaintiffs' what induced the defendants to set up the defense which they opposedto the action. The court erred, therefore, in charging *the jury that evidence of unfriendly feeling existing between one of the plaintiffs and one of the defendants might be considered by them in coming to a conclusion whether or not the defendants were induced to set up a defense to the bill in the hands of the plaintiffs, which they were not entitled to set up, and would not have set up to it, against the payees. The defendants had the same right to defend the action that the plaintiffs had to bring it. The motives of neither were in question. The plaintiffs might sue angrily and the defendants might defend angrily. The plea might have been filed in the worst of temper; but was it true? That was the question for the jury; and it was altogether needless for them to consider what induced the defendants to plead a false plea, or whether they would have pleaded it against the payees or not. The merit or demerit of a defense is not dependent, in any degree, upon the absence of friendly relations between the parties. Friends and enemies stand on equal grounds before the courts.

5. The bacon, for the price of which the bill was drawn and accepted, having been received by the purchasers and retained by them, the court was correct in charging the jury that the presumption of law, in the absence of evidence to the contrary, was that the article was of the quality...