Purcell v. Armour Packing Co.

• Decision Date: 20 April 1908
• Docket Number: 1,011.
• Citation: 61 S.E. 138,4 Ga.App. 253
• Parties: PURCELL v. ARMOUR PACKING CO.
• Court: Georgia Court of Appeals

61 S.E. 138

4 Ga.App. 253

PURCELL v. ARMOUR PACKING CO.

No. 1,011.

Court of Appeals of Georgia

April 20, 1908

Syllabus by the Court.

A declaration setting forth a bank check, and alleging that it was given to the plaintiff by the defendant in consideration of merchandise which the plaintiff delivered to a third person, and that said check had been duly presented for payment, and that payment thereof was refused by the drawee sets forth a good cause of action.

[Ed Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1477-1479, 1494-1498.]

Between the immediate parties a bank check must be supported by a consideration in order to be enforceable against the maker.

(a) When sued thereon by the original payee, the maker can show by parol evidence that the check is without consideration, or that the consideration has failed.

(b) A plea alleging that a check was given to the plaintiff by the defendant without any present consideration, but with the understanding that, if a third person would turn certain money over to the defendant at a future time, the check would be paid out of such money, and further alleging that the money has never been turned over to the defendant, sets forth a good defense; and the court erred in striking the same on demurrer.

In a suit by a payee against a maker of a bank check, the plaintiff makes out a prima facie case by proving the execution and delivery of the check and that it has been duly presented to the drawee for payment, and payment thereof refused. The check itself imports its own consideration in the sense that consideration will be presumed until the contrary appears.

[Ed Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1653, 1800, 1816.]

Error from Superior Court, Glynn County; T. A. Parker, Judge.

Action by the Armour Packing Company against J. C. Purcell. Judgment for plaintiff, and defendant brings error. Reversed.

Twitty & Reese, for plaintiff in error.

D. W Krauss, for defendant in error.

POWELL J.

1. The Armour Packing Company, as payee, sued Purcell as maker on a bank check. Purcell demurred because the declaration did not allege a consideration, and did not allege that payment of the check had been demanded of the drawee. The plaintiff thereupon filed the following amendment: "Plaintiff alleges that the said unpaid check was properly and duly presented for payment at the Brunswick Bank & Trust Company, Brunswick, Ga., upon which said check was drawn, but that before plaintiff presented said check for payment on the following Monday morning, having been given on the previous Saturday afternoon after banking hours, the said defendant wrongfully, improperly, and without authority of law had stopped the payment of said check by said Brunswick Bank & Trust Company, and had ordered and instructed said bank not to pay plaintiff the same. Plaintiff shows to the court that the said check was accepted as cash by plaintiff in payment of certain goods supplied to one Houston Floyd, and represented a cash sale, and cash payment of certain meats and supplies furnished to said Houston Floyd for cash and on strictly cash terms and was so given and accepted as cash, said plaintiff dealing on a cash basis with said Houston Floyd under some arrangement between said defendant and Floyd, the said defendant giving his check for such meats simultaneously with the delivery of same to said Floyd." After allowing the amendment the court overruled the demurrer, and the defendant excepted. There is no merit in the demurrer. The amendment sufficiently alleged a demand and refusal. Haynes v. Wesley, 112 Ga. 668, 37 S.E. 990, 81 Am.St.Rep. 72 (3); 2 Daniel on Negotiable Instruments (5th Ed.) § 1646. And, even if it was necessary to allege a consideration, it is difficult to see wherein the amendment was lacking in this particular. The allegation is that the delivery of the meat to Floyd was the detriment which the plaintiff suffered in exchange for the check. The act of delivering the meat was the doing of that which the plaintiff was not bound to do, and was the injury which it suffered. Detriment to the promisee may furnish a good consideration. Civ. Code 1895, § 3657.

2. The defendant excepts to the court's action in striking its plea and answer, which, in substance, is as follows: The execution and delivery of the check sued on was admitted, and it is alleged that the check was given under the following circumstances: On the morning of June 16th, which was Saturday, the plaintiff's agent came the defendant, and informed him that he had a consignment of meat for one Floyd, and requested defendant to give a check therefor. Defendant replied that, while he had on several occasions in the past given his checks for goods consigned to Floyd, this was because Floyd had funds on deposit with him out of which the checks were to be paid; that on this particular day Floyd had no such funds with him, and therefore he could not give plaintiff a check for the meat. Thereupon plaintiff's agent went away; but in the afternoon of the same day he returned, and told defendant that he had been to see Floyd, who was entirely out of meat; that, it being Saturday, Floyd was very anxious to obtain enough of the consignment to enable him to carry on that day's business, and plaintiff's agent then requested defendant to give a check for a portion of the consignment, dating the same Monday, June 18th, stating to defendant that he would send the check on to Savannah, and it would not be returned until the following Tuesday, and in the meantime Floyd would have sold the meat and collected for it and turned the money over to defendant for deposit. "Defendant refused to do this, but stated to plaintiff's said representative that, if it would be any accommodation to him, he would give his check for the amount of the part of said consignment which plaintiff would deliver to said Floyd for the day's business, dating the same Monday, June 18th, upon the distinct understanding that plaintiff would rely upon the funds which said Floyd would turn over to defendant on the Monday and Tuesday following for payment of said check. *** Defendant expressly stated to plaintiff's said representative that he had no funds in his hands belonging to said Floyd and subject to his check, except possibly a dollar or two, and that he would not use his personal funds to meet such check. Plaintiff's said representative said that this would be all right, as he was confident that said Floyd would be able to dispose of the meats which he intended to deliver to him, and that under the arrangement suggested the check would be protected and would be paid when presented. *** Defendant avers that the check sued on was given under the circumstances hereinbefore detailed, and that there was no consideration moving unto him therefor, and he was acting merely as a custodian of the funds which said Floyd might turn over to him to be applied to the payment of said check, and did not agree to assume said Floyd's indebtedness, or any part thereof, but distinctly and expressly refused so to do; that the plaintiff did not treat the check as payment of its account against said Floyd for said amount; that no assignment of plaintiff's account against said Floyd was ever made or mentioned, and that defendant is in no way liable to plaintiff either for said check or for said account or any part thereof."

In striking this plea the trial judge held that, assuming all the facts alleged therein to be true, still the plea fails to set up a good legal defense to the plaintiff's cause of action. In this we think he erred. This plea, in effect alleges that the check was not given or accepted as payment for the meats delivered to Floyd, nor was the delivery of the meats the consideration for the check; that it was, in fact, without any present consideration; that while under the agreement between the plaintiff and the defendant a consideration for the check might be supplied by the payment by Floyd to the defendant on Monday or Tuesday following of an adequate amount of money, it had not been paid. If, in fact, the check was without present consideration, it was primarily a nudum pactum, though the subsequent payment by Floyd of the money could have supplied a consideration, and have rendered the promise binding; and, if this is the truth of the case, the check was not binding until the money was paid by Floyd, for the obvious reason that, until this had been done, the promise lacked the indispensable prerequisite of consideration. "A promise made for a consideration thereafter to be performed, though it will be invalid as a promise, will take effect as an offer, and will therefore become a binding promise as soon as the consideration is performed, unless it has been revoked or has otherwise ceased to exist before that time." Langdell, Summary of the Law of Contracts, § 70; Morrow v. So. Ex. Co., 101 Ga. 812, 28 S.E. 998. Cf. Toombs v. West, 94 Ga. 280, 21 S.E. 522; Jones v. Glover, 93 Ga. 484, 21 S.E. 50. It does not make any difference in the application of the rule whether the consideration contemplated by the promising party is to be supplied by the promisee himself or by a third person. Civ. Code 1895, § 3664; Bell v. Sappington, 111 Ga. 391, 36 S.E. 780. In showing by parol evidence that the check is unsupported by any consideration, either immediate or supplied, the defendant does not, as plaintiff contends, alter the terms of a valid written contract, but merely shows that there has never been any contract at all, for lack of one of the elements...