Planters & Miners' Bank v. Neel

• Decision Date: 10 March 1885
• Citation: 74 Ga. 576
• Parties: THE PLANTERS AND MINERS' BANK v. NEEL, receiver.
• Court: Georgia Supreme Court

74 Ga. 576

THE PLANTERS AND MINERS' BANK v. NEEL, receiver.

Supreme Court of Georgia.

March 10, 1885

February Term, 1885.

1.The issue being whether a bank was indebted to the estate of a decedent, admissions made by the administrator of the estate while occupying that position, that the bank owed the estate nothing, were admissible, he having brought the suit although at the time of the trial a receiver had been appointed to take charge of the estate.

2.Generally the cashier of a bank, who made a trade involved in the issue on the trial of a case, is not a competent witness where the other party to the contract is dead, the bank having acted, spoken and dealt through such cashier.But if the receiver of the decedent's estate introduces to the jury the sayings or writings of the cashier, the latter may explain such statements or admissions, and give all the transpired at the time concerning that transaction especially if he was agent both for the bank and for the other contracting party.

3.Where an instrument was set out in a declaration as an inducement or foundation of the suit, as stating, " I have renewed your draft," etc., and the paper offered in evidence under the declaration stated that " I have received your draft," etc., and the dates of the two instruments were different, the evidence was inadmissible.If the instrument was a paper sued on, the error was fatal; if not, its execution should have been proved.

4.The charter of the deceased contracting party as a man of close attention to business, was admissible as throwing light on the transaction, under all the circumstances of this case.

( a. )The tendency of the courts is to open the doors wider to let in testimony.

Administrators and Executors.Evidence.Banks.Corporations.Witness.Before Judge FAIN.Bartow Superior Court.July Term, 1884.

To the report contained in the decision, it is only necessary to add the grounds of the motion for new trial, which were as follows:

(1.)Because the court refused to permit the defendant to prove that, while Gray was Tumlin's administrator, he admitted that the defendant owed nothing to the estate on the subject matter of this suit, defendant also offering to prove the naked fact of such admission.[The court added to this ground the following note: " Gray stated that, upon or after investigation, his mind came to a conclusion as to the validity of this debt.Plaintiff's counsel objected to his stating what conclusion his mind came to, and the court held that he could not give his conclusion or opinion, but that he could state any facts from which he formed his opinion, and excluded no admission independently." ]

(2.)Because the court refused to permit a witness to testify that, as cashier of defendant, the witness (Peacock) and Tumlin made a trade by which the draft mentioned in the receipt of the cashier, attached to the declaration as an exhibit, was purchased from Tumlin by the defendant and paid for,-Tumlin's death, and the witness's acting for the bank in the trade being proved, and it being also proved that the witness had no stock in the bank, and was not interested in it in any way at the time of the trial, nor did he ever have any interest in the result of this suit; that this trade occurred in 1873, after the date of his letter to Tumlin set out in the declaration; that the bank suspended in 1876, and had done no business since; that Peacock was, when the trade was made, and has been continuously from the organization of the bank until Tumlin's death, the latter's confidential agent and adviser and the custodian of his choses in action, and in this trade made the figures for Tumlin; and Tumlin acted on his advice, and with his assistance, in making this trade,-the bank's officers when Peacock was employed by it, and ever since, knowing of his agency for Tumlin.Defendant offered also to prove by said Peacock that the terms of this trade were, that the bank paid Tumlin $2,500 cash for this draft, and was to pay him the sum of $1,547.80 as soon as collected from Stiles, and that this should be in full payment for the draft, which then belonged to the bank.This also was excluded by the court.[The court added the following note: " Peacock (the witness) testified that he had no interest at the time of the trial; did not say he had none when he made contract with Tumlin." ]

(3.)Because the court admitted in evidence a letter from Tumlin to the cashier of the bank.-The objection was that the paper admitted did not correspond with the copy annexed to the declaration, and that its execution was not proved.[The paper offered in evidence was dated August 25, 1873.It stated, " I have received your draft," etc.It was not signed, as was the paper sued on, but on its back was endorsed, " Acknowledged.D. W. Peacock, cashier."The copy paper sued on was dated Aug. 25, 1876, though it was described in the declaration as dated Aug. 25, 1873.]It stated " I have renewed your draft," etc.

(4.)Because the court refused to allow the defendant to prove that a deposit check, made by the cashier of the bank at the time of the trade with Tumlin, and shown to be lost, showed $2,500 paid to Tumlin at the time of the trade.

(5.)Because the court refused to...