Third Nat. Bank Of Atlanta v. Western & A. R Co

• Decision Date: 11 March 1902
• Citation: 114 Ga. 890,40 S.E. 1016
• Court: Georgia Supreme Court
• Parties: THIRD NAT. BANK OF ATLANTA v. WESTERN & A. R CO. WESTERN & A. R. CO. v. THIRD NAT. BANK OF ATLANTA.

40 S.E. 1016

114 Ga. 890

THIRD NAT. BANK OF ATLANTA

v.WESTERN & A. R CO.

WESTERN & A. R. CO.

v.THIRD NAT. BANK OF ATLANTA.

Supreme Court of Georgia.

March 11, 1902.

PLEADING—WAIVER OF DEFECTS—ASSIGNEE OF CHOSE IN ACTION.

1. When a plaintiff's petition sets forth a particular state of facts, and thereupon alleges liability on the part of the defendant, it must, if not challenged by demurrer, be treated as legally sufficient to support a recovery; and, if the plaintiff establishes by evidence all the material allegations of such petition, he is, nothing more appearing, entitled to a verdict.

2. The assignee of a nonnegotiable chose in action takes the same subject to the equities existing between the assignor and debtor at the time of the assignment.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by the Third National Bank of Atlanta against the Western & Atlantic Railroad Company. Verdict for defendant, and plaintiff brings error and defendant assigns cross error. Judgment reversed.

Brandon & Arkwright, for plaintiff.

Payne & Tye, for defendant.

FISH, J. The Third National Bank brought an action, returnable to the spring term, 1899, of Fulton superior court, against the Western & Atlantic Railroad Company, the material allegations of the petition being In substance as follows: That the defendant was indebted to the D. H. Browder Company in the sum of $654.01 upon four accounts for overcharges made by the defendant for freight received by it from the Brow der Company; that the general freight agent of the defendant, being fully authorized to do so, issued and delivered to the Browder Company a written voucher or statement for each account, certified by him to be correct, and representing that defendant was indebted to the Browder Company the amount of the respective accounts; that to each of the vouchers were attached the bills of lading and other memoranda upon which the voucher was issued, showing the same to be correct; that the Browder Company, on September 1, 1S98, drew a sight draft upon the defendant for $654.01, the sum of the vouchers, payable to plaintiff's order, and delivered the same, with the vouchers, bills of lading, and other memoranda attached thereto, to the plaintiff, for the purpose of presently passing to the plaintiff the title to the accounts and the fund due to the Browder Company by defendant, as above set forth, and that, upon the faith and credit of the draft with the vouchers attached, plaintiff, Immediately upon its being drawn and delivered, paid to the Browder Company the full amount thereof in money, and that such transaction constituted an assignment of such fund to the plaintiff; that plaintiff parted with its money and made the advance to the Browder Company upon the draft, accounts, and vouchers without any notice or knowledge that the sum represented therein to be due by the defendant to the Browder Company was not or might not be actually owing to the Browder Company by the defendant, but upon the faith of the recitals contained in the vouchers, and upon the belief that such recitals were true; that the draft, with the bills of lading and other memoranda attached thereto, was presented by plaintiff to defendant for payment, which was refused, and that by reason of such facts defendant was indebted to plaintiff the sum of $654.01 principal, besides interest. No objection, by demurrer or otherwise, was made to the petition. The defendant duly filed its answer, in which the material allegations of the petition were denied in separate paragraphs. When the case came on for trial at the fall term, 1900, the defendant offered certain amendments to its answer. The first of these amendments was, in substance, a mere amplification of its denial as set out in the original answer. The other amendment set up that "at the time of the alleged transaction between plaintiff and D. H. Browder Company the D. H. Browder Company was indebted to defendant in the sum of twenty-one hundred and seventy-two ⁸⁹/₁₀₀ dollars, and is now indebted In said sum, as follows, to wit, " setting out an itemized account for freight due by the Browder Company to the defendant, In which the dates, the articles upon which freight is charged, the stations from and to which each article was carried, and the amount of freight due upon each, were set forth. The dates were from April 4 to July 29, 1898. To these amendments was attached an affidavit of thesuperintendent of the Western & Atlantic Railroad Company "that the defendant did not omit...