Russell v. Smith

• Decision Date: 12 August 1895
• Citation: 23 S.E. 5,97 Ga. 287
• Parties: RUSSELL v. SMITH et al.
• Court: Georgia Supreme Court

23 S.E. 5

97 Ga. 287

RUSSELL v. SMITH et al.

Supreme Court of Georgia

August 12, 1895

Syllabus by the Court.

1. Where one voluntarily and without consideration gave his draft in payment of the debt of another, for which the drawer was in no way bound or responsible, there being, upon the paper on which the draft was written, a receipt, signed by the payee, acknowledging payment in full of the debt in satisfaction of which the draft was given, but it being understood between the parties that this receipt was not to become effective until the draft was actually paid, and where, shortly after such draft was delivered, and before it was presented for payment, or anything to the injury of the payee had occurred, the latter was informed by the drawer that he would not be bound by the draft, but would order payment of the same stopped, the drawer was not liable for its payment. The contract embodied in the draft, being entirely without consideration, was a mere nudum pactum.

2. On the other hand, if in such case the creditor, in consideration of the giving of the draft, executed a binding receipt discharging his debtor, or, because of the giving of the draft, was prevented from collecting his debt, or otherwise injured in that respect, the drawer was liable.

3. The evidence being directly conflicting as to the real truth of the matter, the court erred in directing a verdict for the plaintiffs, but instead of so doing should have submitted the case to the jury for their determination.

Error from superior court, Decatur county; B. B. Bower, Judge.

Action by Smith Bros. against D. A. Russell on a draft. Plaintiffs had judgment, and defendant brings error. Reversed.

D. A. Russell and Glenn & Rountree, for plaintiff in error.

Donalson & Hawes, for defendants in error.

PER CURIAM.

Judgment reversed.