Sanders Mfg. Co v. Dollar Sa

• Decision Date: 10 April 1900
• Citation: 35 S.E. 777,110 Ga. 559
• Parties: SANDERS MFG. CO. v. DOLLAR SAV. BANK.
• Court: Georgia Supreme Court

35 S.E. 777

110 Ga. 559

SANDERS MFG. CO.

v.DOLLAR SAV. BANK.

Supreme Court of Georgia.

April 10, 1900.

APPEAL—REVIEW—DIRECTING VERDICT.

1. Points not argued here by brief or otherwise will be treated as having been abandoned.

2. The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole, and of all legitimate inferences therefrom, the verdict against him is demanded.

3. The supreme court has no jurisdiction to pass upon questions not made in the record.

(Syliabus by the Court.)

Error from superior court, Whitfield county; A. W. Flte, Judge.

Action by the Dollar Savings Bank against J. M. Sanders, doing business as the Sanders Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Jones & Martin, for plaintiff in error.

Shumate & Maddox, for defendant in error.

LUMPKIN, P. J. The record discloses that J. M. Sanders, of Dalton, Ga., doing business under the name of the Sanders Manufacturing Company, took from R. K. Griffin & Co., of Wheeling, W. Va., a promissory note payable to the order of the manufacturing company at the Dollar Savings Bank, in the city last mentioned. J. M. Sanders, without himself Indorsing this note, delivered it to W. S. Sanders, who was going to Wheeling, with instructions to sell or dispose of it. On reaching that place, W. S. Sanders discounted the note at the bank named, and the proceeds of the note were subsequently duly turned over to J. M. Sanders. At the time of discounting the paper, W. S. Sanders wrote upon the back thereof an indorsement in these words: "Pay to the order of Dollar Savings Bank. [Signed] Sanders Mfg. Co., by W. S. Sanders." Afterwards the bank brought in the superior court of Whitfield county an action on the note against the Sanders Manufacturing Company, as indorser. In one paragraph of the answer the defendant denied "that the Sanders Manufacturing Company ever indorsed said note, or authorized any one else to indorse the same, or ratified such indorsement after it was made." In another paragraph the defendant admitted the receipt of a notice "of the protest of said note, " but called upon the plaintiff for strict proof of its allegations that the note had been presented for payment, that payment had been refused, and that the note had been protested for nonpayment. After evidence had been introduced by both parties at the trial, the court directed a verdict in favor of the plaintiff, and the defendant sued out a bill of exceptions to this court. The only assignments of error therein are (1) that the court erred in admitting in evidence the note sued on, with the indorsement on the same, over an objection that it had not been shown, under the evidence, that the note was indorsed by the Sanders Manufacturing Company, or by any one authorized so to do, or that such indorsement was subsequently ratified; and (2) that the court erred in directing a verdict for the plaintiff, "because, as counsel for the Sanders Manufacturing Company insist, the evidence as to how the indorsement was placed on the note is conflicting, and, being one of fact, should have been left for the jury to pass upon." There was in the bill of exceptions no complaint that the direction of the verdict was for any other reason erroneous.

1. We are constrained to treat the assignment of error upon admitting the note In evidence as abandoned; for the case was argued here exclusively by brief, and in the brief of counsel for the plaintiff in error there was no allusion whatever to this point. Parker v. Lanier, 82 Ga. 219, 8 S. E. 57; Brown v. State, 82 Ga. 224, 7 S. E. 915; Davis v. Jackson, 86 Ga 138, 12 S. E. 299; Railway Co. v. Wideman, 99 Ga 245, 25 S. E. 400; Moss v. Lovett, 99 Ga. 321, 25 S. E. 649; Thompson v. Waterman, 100 Ga. 586, 28 S. E. 286; Laffitte v. State, 105 Ga. 595, 31 S. E. 540; Davis v. State, 105 Ga. 784, 32 S. E. 130.

2. At the trial, Peterson, the cashier of the Dollar Savings Bank, testified that when W. S. Sanders negotiated the note at that bank he was asked "if he was authorized to sign the name of the firm as indorser, and he said he was"; and, according to the recollection of the witness, Sanders "gave some evidence of authority." This witness further testified: "When the note was so discounted, there was no special agreement of any kind whatever. It was simply double-named paper, and no special agreement of any kind whatever was made, other than what is in-dorsed on the paper.* * * The note was discounted with the clear and distinct understanding that It was double-named paper, which means the liability of both maker and indorser;" and witness "would not have entertained this discounting in any other way." W. S....