Stewart v. W. U. Tel. Co., 33453
| Decision Date | 16 March 1951 |
| Docket Number | No. 33453,No. 2,33453,2 |
| Citation | 83 Ga.App. 532,64 S.E.2d 327 |
| Parties | STEWART v. WESTERN UNION TEL. CO |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. While the right of the maker of a check to have his agent the drawee bank to stop payment thereon is absolute, the exercise of this right will not have the effect of avoiding his liability to holders in due course thereof.
2. The plaintiff here was liable as both maker and endorser to the subsequent holders in due course of the check in question at the time he sought to have payment thereon stopped by his agent the drawee bank.
3. Where, as here, neither general nor nominal damages are sought but the plaintiff sues for an item of special damage only, which item of special damage is not recoverable, he is not entitled to recover in any amount, although he would have been entitled to nominal damages had the same been sought.
4. There being no conflict in the evidence in this case, and the evidence introduced, construed in its light most favorable to the plaintiff, being insufficient to support a verdict in his favor, it was not error for the trial court to direct a verdict in favor of the defendant.
The plaintiff, Charles E. Stewart, brought an action in the Superior Court of Fulton County against Western Union Telegraph Company, alleging that he had been damaged by the defendant in the sum of $1,000 by reason of the following facts: That on May 1, 1947, he gave to one L. A. Baker his check for $1,000 for the purpose of purchasing an automobile for the plaintiff; that after giving him this check, the plaintiff discovered that Baker had failed to make a bank deposit to the plaintiff's credit as had been agreed between them and that checks written by Baker had been returned marked 'insufficient funds'; that immediately thereafter, on May 2, plaintiff telegraphed the Fulton National Bank on which the check had been drawn, using the services of the defendant telegraph company, as follows: 'Stop payment check $1000 payable to L. A. Baker dated May 1 [signed] Charles E. Stewart'; that the defendant negligently transmitted the message as follows: 'Stop payment check $1000 payable to A. Baker Dalto, May 1st [signed] Charles E. Stewart'; that the Fulton National bank entered a 'stop order' against a check payable to A. Baker Dalto, but paid the check issued to L. A. Baker in the regular course of its business, and that this negligence and lack of ordinary care on the part of the defendant is the sole and proximate cause of the plaintiff's damages. The prayers were for process and for judgment in the amount of $1,000 plus interest. The defendant's answer admitted the mistake in the transmission of the telegram. It set out that the original message had been written in longhand, that the word 'dated' commenced with a capital 'D' and the last three letters had the appearance of an l, t and o; that no claim had been presented in writing to the company within 60 days of the occurrence of the event, as required by th tariff provisions of the Georgia Public Service Commission and the contract on the back of the Western Union form on which the message was written and which was in consequence accepted by the plaintiff, and that also, under the aforesaid provisions, the defendant would not in any event be liable for more than $500.00, the subject matter involving the nondelivery of a message at the unrepeated message rate.
Upon the trial of the case the original message as written by the plaintiff and the $1,000 check were introduced in evidence. The check was signed, 'Chas. E. Stewart', drawn on the Fulton National Bank at Atlanta, Georgia, dated May 1, 1947, payable to L. A. Baker. On the back appear the following endorsements: 'L. A. Baker; Chas. E. Stewart; I. Krieger.' There is also the endorsement stamp of the Citizens & Southern National Bank of Valdosta, dated May 1, 1947, and of the Federal Reserve Bank of Atlanta, dated May 5, 1947.
Upon the conclusion of the evidence the trial court directed a verdict in favor of the defendant, and this ruling is made the foundation of the direct bill of exceptions.
W. George Thomas, George D. Stewart, and J. E. B. Stewart, all of Atlanta, for plaintiff in error.
Morris B. Abram and Heyman, Howell & Heyman, all of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. The bank upon which a check the payment of which is sought to be stopped being the agent of the maker, the latter is entitled as a matter of right to stop payment of any check drawn by him on such bank any time before such check is presented to such bank for payment. Bank of Hamilton v. Williams, 146 Ga. 96, 90 S.E. 718. This right of...
To continue reading
Request your trial
-
Estate of Holland v. Commissioner
...Delco Corp., 195 S.E.2d 455 (Ga. Ct. App. 1973); Mason v. Blayton, 166 S.E.2d 601, 603 (Ga. Ct. App. 1969); Stewart v. Western Union Tel. Co., 64 S.E.2d 327, 329 (Ga. Ct. App. 1951). Due to her power to stop payment of the checks before the bank paid them, decedent retained the power to rev......
-
Simmons v. Boros, 70237
...(Emphasis supplied.). See also Gillen v. Coconut Grove Bank, etc., Co., 172 Ga. 908, 159 S.E. 282 (1931); Stewart v. Western Union Tel. Co., 83 Ga.App. 532, 64 S.E.2d 327 (1951). The trial court did not err in directing a verdict for Judgment affirmed. BANKE, C.J., BIRDSONG, P.J., and POPE ......
-
Wright v. Trust Co. of Ga.
...although no actual damages are suffered (Williams v. Harris, 207 Ga. 576, 63 S.E.2d 386) does not apply. Stewart v. Western Union Telegraph Co., 83 Ga. App. 532, 64 S.E.2d 327; Darlington Corp. v. Evans, 88 Ga.App. 84, 76 S.E.2d The trial court did not err in granting the motion for judgmen......
-
Strickland v. Flournoy
...Sales Co., 25 Ga.App. 62(2), 102 S.E. 645; Hadden v. Southern Messenger Service, 135 Ga. 372, 69 S.E. 480; Stewart v. Western Union Telegraph Co., 83 Ga.App. 532(3), 64 S.E.2d 327; Beverly v. Observer Publishing Co., 88 Ga.App. 490(3), 77 S.E.2d 80. 'Where a petition enumerates the items of......