Morris v. Georgia Power Co.

• Decision Date: 21 June 1941
• Docket Number: 28879.
• Citation: 15 S.E.2d 730,65 Ga.App. 180
• Parties: MORRIS v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

15 S.E.2d 730

65 Ga.App. 180

MORRIS v. GEORGIA POWER CO.

No. 28879.

Court of Appeals of Georgia, Division No. 2.

June 21, 1941

T B. Higdon, H. W. Belfor, and E. Harold Sheats, all of Atlanta, for plaintiff in error.

MacDougald Troutman & Arkwright, Dudley Cook, and Harllee Branch Jr., all of Atlanta, for defendant in error.

SUTTON Judge.

Charles F. Morris brought suit against Georgia Power Company to recover $10,000 as damages for conversion of a certificate of 50 shares of Georgia Power Company $6 preferred stock, No. AO-29451, the petition as amended alleging that the defendant, on November 14, 1934, took into its possession and converted the same to the use of persons unknown to the plaintiff, which stock was the property of the plaintiff and was at that time of the value of $60 per share and of the total value of $3,000 and had a rental or income earning value of $6 per share; that the name of the official or agent of the defendant who took possession of the certificate of stock was D. B. Peck, transfer agent of the defendant in the City of New York; that the facts upon which responsibility on the part of the defendant for said official's taking possession of said stock is based are that at the time and place of the taking possession of the stock he was the transfer agent of the defendant and as such was charged with the duty of transferring on its books in the City of New York stock issued by the defendant and of issuing new stock for such certificates as were surrendered to him for cancellation; that the tort or conversion complained of was committed by said official or agent in issuing to third persons a new certificate of stock for the said certificate AO-29451, and that in doing this he was acting in his capacity as transfer agent of the defendant.

The defendant filed a plea and answer which as amended denied that the plaintiff was the owner of the stock in question or that the defendant had converted it; that the property alleged to have been converted by the defendant is 50 shares of Georgia Power Company $6 preferred stock, evidenced by certificate No. AO-29451; that on March 1, 1939, subsequent to the filing of the present suit against the defendant on November 10, 1938, the Court of Appeals of this State rendered a decision in the case of Charles F. Morris v. R. W Courts et al., in an appeal from a case in which Charles F. Morris had filed suit for conversion against R. W. Courts and defendants for having converted to their use certain shares, to-wit, 50 shares of Georgia Power Company $6 preferred stock, evidenced by certificate No. AO-29451; that C. W. Courts and others, doing business as Courts & Company, have been vouched in as a party defendant in the present case, and that it appears in the opinion rendered by the Court

of Appeals that R. W. Courts and others, doing business as Courts & Company, are privies to the defendant in the transaction which is alleged to be a conversion, and that the property which was the subject matter of the conversion suit passed upon by the Court of Appeals was the same and identical property as that described in the present suit; that in the case of Morris v. Courts & Company a verdict was directed for the defendants on July 2, 1938, and a judgment rendered thereon, and that this court, in its decision rendered March 1, 1939, affirmed the verdict and judgment of the trial court; that a copy of the petition in the former suit, together with the verdict and judgment therein rendered and the remittitur handed down by the Court of Appeals in said case, is attached to the plea in the present suit and made a part thereof; and defendant prayed that its plea be allowed and ordered filed as a part of the record and that the plaintiff's petition and cause of action be dismissed. To the plea and answer as amended the defendant attached as exhibits the copies of petition, verdict and judgment, and the remittitur of this court, in Morris v. Courts, 59 Ga.App. 666, 1 S.E.2d 687, decided by this court on March 1, 1939.

By amendment it was alleged that the plaintiff delivered the custody and possession of the said certificate No. AO-29451 to American Bond and Share Corporation, and that at the time of such delivery the transfer printed on the back of the certificate was executed in blank by the plaintiff; that thereafter the American Bond and Share Corporation delivered custody and possession of said certificate to B. R. Bradley with the transfer on the back of the certificate executed in blank by the plaintiff; that on or about November 18, 1934, the said Bradley brought to Courts & Company the said certificate with the transfer on the back thereof executed in blank by the plaintiff and offered to sell the same to Courts & Company, who purchased it for full value from the said Bradley, and the stock certificate was delivered by him to Courts & Company; that Courts & Company purchased it without any knowledge what soever of any defect in the title of said Bradley thereto; that it was subsequently presented to D. B. Peck, official transfer agent of the defendant in the City of New York, and it was cancelled and a new stock certificate issued to Charles D. Barney & Company; that no documents accompanied the stock certificate when it was presented to the said transfer agent, and he had no knowledge or notice whatsoever of any defect in the title of the said Bradley or of any one else thereto, and that prior to the presentation of the certificate to its transfer agent the signature on the certificate was guaranteed by the Citizens & Southern National Bank in Atlanta, Georgia, and by Courts & Company; that by reason of the facts above stated the plaintiff is estopped from asserting against the defendant any claim or title to said certificate or to said shares of $6 preferred stock of the defendant; that the title to the certificate here involved has been adjudicated to have been in Courts & Company as bona fide purchasers for value, and that the defendant received the stock certificate from Courts & Company through Charles D. Barney & Company without any notice of any alleged infirmity in the title; that it was also held in the plaintiff's case against Courts & Company, involving the same stock, that the plaintiff was estopped from asserting any title to the identical shares of stock and that the plaintiff is likewise estopped in the present case.

The plaintiff demurred to the plea and answer as amended on the grounds: (1) That the matters set up are irrelevant and constitute no defense to plaintiff's action; (2) that the plea fails to show any privity between the defendant and R. W. Courts et al., the defendants in the former action named in the plea as involving the same stock; (3) that the plea fails to show that the same rights of action and issues were adjudicated in the former action and controlled the final decision therein; (4) that the plea does not disclose what the cause of action was in the former suit or what the cause of action is in the present suit. The court overruled the demurrer. Thereafter the case proceeded to trial on the defendant's plea. The defendant introduced in evidence certain portions of the record in Morris v. Courts, supra, namely, the original petition, the defendant's plea and answer, the verdict of the jury, the judgment of the trial court, the brief of evidence, and the remittitur of the Court of Appeals with the judgment of the trial court thereon. To this evidence the plaintiff objected on the ground that it was irrelevant, incompetent, and inadmissible in that it purported to be a record of a suit between the plaintiff and defendants who are not parties to the present suit or in privity with parties to the case, and that said former action involved no issue to be tried in the present suit but involved totally different issues, and that, therefore, there was no identity of parties, issues, or causes of action. The court overruled the objection and admitted the evidence.

The plaintiff then introduced in evidence the following agreed statement of facts: "The Georgia Power Company defendant herein, is a corporation with its principal office and place of business in Fulton County, Georgia. Davis H. Green and Mace J. Green are the duly qualified executors of the estate of John F. Green, deceased, and Charles F. Morris is the duly qualified administrator on the estate of his deceased wife, Mrs. Nettie P. Morris. At the date of indorsement Charles F. Morris was the owner of fifty shares of the $6 preferred capital stock of the defendant company, evidenced by certificate No. AO-29451, issued October 17, 1933. His wife, Mrs. Nettie P. Morris, was at the date of indorsement the owner of twenty-five shares of said stock, evidenced by certificate No. AO-29490, issued October 26, 1933. John F. Green at the date of said indorsement was the owner of fifty shares of said stock, evidenced by certificate No. AO-25858 for twenty-six shares, issued October 17, 1932, and No. AO-25873 for ten shares, issued August 15, 1932. The original certificates here described or photostatic copies thereof will be introduced as documentary evidence supplementing this statement of facts. On November 7, 1934, S. R. Bradley, president of the American Bond and Share Corporation, sold and delivered to Courts & Company, a firm of stock brokers of the City of Atlanta, the twenty-five shares issued to Mrs. Nettie P. Morris, evidenced by the certificate above described, and on November 8, 1934, S. R. Bradley sold and delivered to Courts & Company the fifty shares issued to John F. Green, evidenced by the other certificates above described. On November 14, 1934, the certificate issued to C. F. Morris and the three certificates issued to John F. Green were presented to D. B. Peck, the...