The City Bank Of Macon v. Kent

• Decision Date: 31 July 1876
• Citation: 57 Ga. 283
• Parties: The City Bank of Macon, plaintiff in error. v. Effie Kent,defendant in error.
• Court: Georgia Supreme Court

57 Ga. 283

The City Bank of Macon, plaintiff in error. v. Effie Kent, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

[Jackson, Judge, having been of counsel, did not preside in this case.]

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Principal and agent. Ratification. Banks. Evidence. Receipts. Jury. Charge of court. Witness. Practice in the Superior Court. Verdict. New trial. Practice in the Supreme Court. Attorneys. Before Judge Hill. Bibb Superior Court. October Term, 1875.

Effie Kent brought complaint against the City Bank of Macon, on an account containing but one item, as follows:

"May 15th, 1872—To amount of cash deposited in said bank to her credit, $4,000 00."

The defendant pleaded as follows:

1st. The general issue.

2d. That said deposit was made by Benjamin F. Griggs, who, at the time, held a general power of attorney under the hand and seal of plaintiff, for the management of said money; that said sum has been fully paid out to said attorney, under checks signed by the plaintiff, payable to said attorney or bearer; that such payment is a full discharge of the defendant.

3d. That said power of attorney was exhibited by Griggs to the defendant at the time of making said deposit, and was unrevoked at the time of the payment of the aforesaid checks by the defendant; that such payments, therefore, operated as a full discharge to the defendant.

4th. That after said money was thus paid out to said attorney in fact, he fully accounted with the plaintiff for the same, and the latter ratified the payment to him, and had a complete and final settlement with him as to his liability onaccount of such money.

*The evidence, which was voluminous, made, in substance, the following case:

Benjamin F. Griggs was the family physician of the plaintiff. His relations with her were of the most intimate char-acter. He attended her husband in his last sickness, and after his death, became her agent for the collection of $5,000 00 due to her on policy of insurance on the life of the deceased, under the following power of attorney:

"STATE OF GEORGIA—Bibb County:

Know all men by these presents, that I, Effie Kent, widow of James M. Kent, deceased, of said county and state, do hereby, in consideration of $1 00 to me paid, the receipt whereof is hereby acknowledged, do constitute and appoint Dr. Benjamin F. Griggs, also of said county, my true and lawful agent and attorney in fact, for me and in my name, place and stead, to apply for and collect any and all moneys due, or to become due to me, from any source, and especially the amount claimed by me from the Continental Life Insurance Company, of the city of New York, on the policy of said company held by me, insuring the life of the said James M. Kent, now deceased, and to give for me and in my name, any and all receipts or acquittances necessary or proper on receiving, or in order to enable him to receive any and all such moneys, or any part thereof; and also to apply portions of such moneys, after being received by him, to debts due by me, taking receipts therefor, and generally to do and perform any other act or acts in and about my said business that may be deemed necessary or proper. Hereby ratifying whatever my said attorney shall do in the premises by virtue of these presents.

"In testimony whereof, I have hereto, set my hand and affixed my seal, this 5th day of April, in the year A. D, 1872.

(Signed) "EFFIE KENT.

"Signed, sealed and delivered in presence of

"D. W. Hammond,

"R. S. Lanier."

*The plaintiff states that Griggs proposed to attend to this business for her as a brother, charging no compensation therefor; Griggs, on the contrary, asserts that plaintiff requested him to collect the money for her, offering at the same time to allow him for his services one-half the net proceeds after paying all the expenses of collection, etc., out of the fund.

Griggs collected from $4,900 00 to $5,000 00 on the policy, $4,000 00 of which he deposited, on May 23d, 1872, in the name of plaintiff, with the defendant. It is for this sum that the suit is brought. At the time the deposit was made, Griggs showed to the cashier of defendant the above power of attorney, and stated that it was under the authority of such instrument that he was acting. The defendant produced six checks, aggregating $4,000 00, purporting to have been signed by plaintiff, which were paid by it. These checks were presented by Griggs and the money paid to him. The plaintiff denied that she had signed any of these checks, and upon thispoint the evidence was distressingly conflicting. But the overwhelming weight of testimony showed that the signatures would have been pronounced by any bank officer as genuine. If the checks were spurious the forgery was so well executed that the most expert would have been deceived. The teller and cashier of defendant both testified emphatically to the fact that when plaintiff came to them for her money, before suit brought, she admitted that she had signed two of the checks, but did not specify which. This the plaintiff denies, and a witness who accompanied her, states that he has no recollection of such admission, though it might have been made.

The defendant further insisted that even though the checks were forgeries, and even though Griggs had no authority to draw the money from bank, yet that plaintiff had ratified his illegal and unauthorized acts in this particular, in receiving all or a portion of the money thus drawn out from him, in authorizing him to lend it to various persons at interest, and in accepting his note for a part thereof, or in receiving payments on such note after she was informed that it was given for a portion of the money thus drawn out of bank. As to *each of these acts, from which defendant sought to infer ratification, the evidence was very conflicting. Griggs swore that plaintiff knew all about the money's having been drawn from bank, and that she, with such knowledge, received about $2,000 00 thereof, in addition to the $900 00 not deposited. This, the plaintiff denies. Griggs further stated that plaintiff importuned him to lend out the money for her benefit. This also the plaintiff denies. Griggs further testified that he placed in the hands of Lanier & Anderson, attorneys, a note on himself, payable to the order of plaintiff, for $1,200 00, dated September 25th, 1872, and due one day after date, which covered an amount loaned to him by the plaintiff after he had settled in full for her insurance money, upon which he was to pay her the interest, and the principal as she might need it from time to time. That this was done with the knowledge and consent of the plaintiff. Whether plaintiff knew at the time this note was placed in the hands of Messrs. Lanier & Anderson by Griggs, that it represented a portion of the money drawn from bank, or even that it had been placed there at all, the evidence is conflicting. But two payments were made on this note, each of $50 00, and the testimony indicates that even if the plaintiff did not know that this paper represented a portion of her insurance money when the first payment was made, she certainly did at the time of the last. Failing in these grounds of defense, the defendant under took to show that Griggs had accounted with plaintiff for all of the money thus drawn from bank, and for this purpose introduced the two following receipts:

"Macon, Ga., August 27th, 1872.

"Received of Dr. Benjamin F. Griggs $4,900 00, less certain amounts paid out by him on my account and by my order, in full of the amount collected by him as my attorney in fact, from the Continental Life Insurance Company of New York, on a policy insuring the life of James M. Kent, my late husband. (Signed) "EFFIE KENT.

"Witness: H. J. Peter."

*'Macon, September 11th, 1872. "Received of Dr. B. F. Griggs $60 00 in full of balance

in his hands as my agent, in full of all demands of every description I have against him.

(Signed) "EFFIE KENT.'"

"Witness: Peter C. Sawyer."

Griggs testified that the first of these receipts was given in full settlement of the amount due by him to plaintiff for moneys collected; that there was then in bank to the credit of plaintiff $500 00, and he so informed her; that on the 30th of August, at her request, and on her check, he drew the remaining $500 00 from bank and handed it to her; that she returned him $200 00 of this amount, with the request that he pay certain bills for her, as she was going to Florida; that he paid the bills, and, on the 16th of September, handed to her a balance of $60 00, remaining after making the disbursements she requested, and took the receipt last above set forth. (The date of this receipt in the record is September 11th.)

The witnesses to these papers throw no light upon them. They testified as to nothing material except the execution.

The plaintiff stated that she first saw the receipt for $l, 900 00 at Peter's drug store on September 16th, 1772, in presence of Mr. Peter; that she signed it a second time, on the same day, at Griggs' house, in presence of Mr Sawyer. That Griggs read the receipt to her, on both occasions, as for $900 00. That she supposed she was signing, on each occasion, the same; paper. That he paid her, on the same day, $60 00 at the train as she was about to leave for Hawkinsville. That she understood her $4,000 00 to be in bank, and that this receipt was for the disbursement of $900 00 never deposited, the balance of which was the $60 00 paid to her by Griggs at the depot, and which he promised to bring there at the time she signed the receipt.

There were also in evidence, two indictments against Dr. Griggs, found before this suit was brought and still pending, *one of which charged him with the forgery of one of the aforesaid checks and the other with the larceny after trust delegated of the balance of the money collected from the insurance company after the deposit of...