Reynolds v. Simpson

• Decision Date: 10 March 1885
• Citation: 74 Ga. 454
• Court: Georgia Supreme Court
• Parties: REYNOLDS, assignee, v. SIMPSON & LEDBETTER.

74 Ga. 454

REYNOLDS, assignee, v. SIMPSON & LEDBETTER.

Supreme Court of Georgia.

March 10, 1885

February Term, 1885.

1. One question in the case being whether goods had been furnished to a third party on the credit of the defendant, or whether the defendant was a mere surety of the third party, without any written contract, there was no error in allowing the vendors to testify to whom the credit was given, they having stated at the same time all the circumstances attending the transaction.

2. If the effect of an arrangement between the defendant and the vendors of goods was an agreement that the defendant would be responsible or would pay for goods to be sold by the vendors to a third person, and for which such third person also was to be responsible, then the defendant would be a surety for him, and the contract not being in writing, would be void and not binding on the defendant.

( a. ) The finding of the jury on this question was supported, if not required, by the evidence.

3. Where a banking corporation acquires possession of property either by a lien thereon or by the purchase of the same, for the payment of a debt due to it, and expends money on it, or furnishes supplies either for its preservation or to carry on the business in which such property is employed, with a view to rendering it productive, in order to satisfy the debt the bank holds against the former owner of the property, it is not chargeable with exceeding its corporate powers by engaging in a business beyond the scope and purpose of its creation.

( a. ) Whether the bank used its power of collecting its debts as a pretext for embarking in a business foreign to that for which it was created and which it was authorized to conduct, or whether it made a proper use of it in furtherance of its legitimate business, was fairly submitted to the jury and their verdict is upheld by the evidence.

4. He who alleges error must show error. He must plainly specify not only the decision complained of, but must, with like particularity, allege the error claimed to exist therein. A general and uncertain suggestion in argument of errors in calculation will not cause a reversal.

Evidence. Debtor and Creditor. Principal and Surety. Statute of Frauds. Banks. Corporations. Practice in Supreme Court. Before Judge FAIN. Floyd Superior Court. September Adjourned Term, 1884.

Reynolds as assignee of the Bank of Rome, brought suit against Simpson & Ledbetter for $1,551.86, paid out by the bank on their checks. The defendants pleaded as a set-off certain protested drafts of the bank, and an account for goods furnished, on which there was a balance of $1,519.27. The contest was over this account and the liability of the bank thereon. The evidence for the defendants on this subject was, in brief, as follows: One Harrison leased certain iron works in Alabama, known as the Stonewall Iron Works, and one Langdon Bowie was placed in charge as general manager. Much of the pig-iron produced by these works was shipped to the Vulcan Iron Works, of Chattanooga, in which Harrison was interested. In 1880, both Harrison and the Vulcan works failed, and Harrison made an assignment. Bowie had drawn large drafts on the Vulcan Iron Works, and they had been discounted by the Bank of Rome. After the failures above stated, Harrison and Bowie were anxious to secure the bank, and at Bowie's suggestion, the bank sued out an attachment and levied on all the personal property in Alabama and garnished Bowie. Bowie told Samuels, the president of the bank, that if he could work off the raw material on hand, convert it into pig-iron and sell it, the indebtedness to the bank could be paid, but that in order to do this, it would be necessary to have supplies, and it was agreed that supplies should be furnished to the extent of about $8,000. Bowie had previously had an account on the books of Simpson & Ledbetter, and at that time there was due $222.94 on his account. Samuels, as president of the bank, went to Simpson & Ledbetter and told them to let Bowie have goods until he should instruct them otherwise, and the bank would pay for them. They accordingly sold the goods to Bowie. Both testified that they gave the credit to the bank. The directors and a majority of the stockholders of the bank knew of and approved Samuels's action. This new account began to run from June 30, 1880. On July 28, the former account of Bowie was paid. Samuels was kept advised of the status of the account, and the overdrafts of defendants were allowed to be drawn on the basis of it. At one time, Samuels declined to be responsible further, and the defendants refused to ship goods to Bowie, but Samuels changed his instructions, and the goods where shipped. The effort to realize on the debt did not prove profitable, not even paying for the amount advanced. Subsequently the bank failed and made an assignment to Reynolds.

The plaintiff, partly by cross-examination and partly by testimony introduced by himself, showed that the account sued on followed on the books of the defendants the former account of Bowie, manager; that the goods in the present account were billed to Bowie and were charged on the blotter and journals to Bowie or Bowie, manager; that they were entered on the ledger to Langdon Bowie, manager Stonewall Iron Co., and above this heading in the blank space at the top of the ledger was written, " Bank of Rome, per; " that neither of the defendants, could state or would express an opinion as to when this entry was made, and the book-keeper who made it was dead. The bank pass-book of the defendants also was introduced, showing large and varying overdrafts at different times during the continuance of the account sued on.

There was other testimony and parol proof of accounts, which it is unnecessary to detail.

The jury found for the defendants. The plaintiff moved for a new trial, on the grounds stated in the decision, which was overruled, and he excepted.

DABNEY & FOUCHE, for plaintiff in error.

UNDERWOOD & ROWELL, for defendants.

HALL Justice.

This was a suite by the assignee of the Bank of Rome against Simpson & Ledbetter, upon an account for money paid on their checks, aggregating the sum of $1,551.86, besides interest from March 24th, 1881.

Defendants pleaded, as a set-off against this demand, the protested drafts of the bank, amounting to $176.88, and also an open account running from June 30th, 1880, to February 17th, 188...