Vanzant v. Arnold
| Decision Date | 31 August 1860 |
| Citation | 31 Ga. 210 |
| Parties | VANZANT, JONES & CO. vs. ARNOLD, HAMILTON & JOHNSON et al. |
| Court | Georgia Supreme Court |
Motion to reinstate a case, in Fannin Superior Court. Decision by Judge Rice, at the May Term, 1860.
The record in this case exhibits the following state of facts, to wit:
Davis & Campbell made two notes, dated the 18th of August, 1856, due six months after date, payable to the order of Vanzant & Jamerson, for $447.25 each.
On the 20th of October, 1856, Vanzant, Jones & Co. indorsed both of said notes in the following form: "For value received, we assign the within notes to Arnold, Johnson & Hamilton, and to H. E. Diblee & Co., waiving demand and notice, and guarantee the payment of the same."
Arnold, Hamilton & Johnson, and H. E. Diblee & Co., instituted an action in Fannin Superior Court, against Vanzant, Jones & Co., to recover the sum due on the notes, the payment of which they had undertaken by said indorsement.
On the trial of the case, the plaintiffs introduced in evidence the notes sued on, with the indorsements thereon, and closed.
The defendants then proved that Davis & Campbell, the makers of the notes, and Vanzant, Jones & Co., the endorsers, and defendants, all resided in the State of Georgia, and that the plaintiffs resided in New York; that the endorsements were made and delivered to the plaintiffs' agent in the State of Tennessee, and that Vanzant, Jones & Co. notified the said agent to sue Davis & Campbell, the makers, which was not done until after three months from the date of such notice.
Upon this state of facts, the presiding Judge held that the notice to sue was a valid defence for the indorsers, without showing any law of Tennessee making such notice a defence against such indorsement, and gave the plaintiff leave to dismiss said case, with leave to move to reinstate said case in the event the Court should be of the opinion that the notice to sue was not a good defence.
The presiding Judge then passed the following order, to wit:
"It is therefore ordered by the Court, that said cause be dismissed, and that the defendants show cause at the next term of this Court, why said cause should not be reinstated, on the ground that the Court erred in holding said notice to sue to be a good defence in said case."
Upon hearing argument upon this rule, the presiding Judge, at the May Term, 1860, passed the following order, to wit:
"Upon hearing this rule, it is ordered by the Court that said nonsuit be set aside, and said case be reinstated."
The decision of the Court, reinstating said case, constitutes the error complained of in this case.
Wm. Phillips, Reid & Weil, for the plaintiffs in error.
Martin, represented by Ezzard, for the defendants in error.
By the Court. —Lyon, J., delivering the opinion.
1. As the case had gone off from the docket in the Court below, without a finding, by the jury, of the facts on which the defence rested, we do not think there was any error in the Court's allowing the case to be reinstated—and as that is the whole of the judgment complained of, the judgment must be affirmed for that reason.
But as the merits of the defence have been argued as admitted facts, we have felt it to be our duty to pass upon the several questions made in the argument, and necessarily involved in the case.
It is insisted, first, by the counsel for plaintiffs in the Court below, that the contract of the defendants is not that of an indorsement; and, secondly, if an indorsement, that as it was made in Tennessee, the Act of 26th December, 1826, (Cobb, 595), does not affect it; that it is a contract made in the State of Tennessee, and not to be governed by the provisions of that Act.
2. We think the defendants are indorsers. Their written engagement on the back of the note has the legal effect of an indorsement in Georgia, of notes not payable or intended for negotiation in banks. That they stipulate therein to guaranty the payment of the note, does not the less make them indorsers, under the Act of 1826, already referred to, for by it they have the right to define their liability; and thus may be guarantors, and yet indorsers, within the meaning and provisions of that Act.
3. The next inquiry is, whether the defendants, as indorsers, are entitled to the benefit and protection of the...
To continue reading
Request your trial
-
Maddox v. Duncan
... ... do so, might have maintained an action against Duncan and the ... maker of the note jointly ... In ... Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson, ... 31 Ga. 210, the defendant negotiated notes with the following ... indorsement on the back: "For ... ...
-
Hendrix v. Bauhard Bros.
...the ground that it was a transfer, and contained a guaranty of payment, it was directly in conflict with the ruling of this court in Vanzant v. Arnold, supra. Note, also, Dunning v. Heller, 103 Pa. 269, 272. Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762, 42 S.E. 1002, an entry was made ......
-
Bowman v. Bowman
...the case notwithstanding its dismissal, and counsel cite and rely upon Warner v. Graves, 25 Ga. 369, 371; Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson, 31 Ga. 210(1); Williams v. Rawlins, 33 Ga. 117(10), 123; Armstrong v. Lewis, 61 Ga. 680(2); Brooks v. Brooks, 175 Ga. 313, 165 S.E. 1......
-
Northeast Factor & Discount Co. v. Mortgage Investments, Inc. of Ga., 40047
...as Indorsement, 19 Cal.L.Rev. 324 (1931). Prior to the adoption of NIL 1 the majority rule had been adopted in Georgia. Vanzant, Jones & Co. v. Arnold, 31 Ga. 210, 212(2); Smith v. Brooks, 65 Ga. 356; Chandler v. Smith, 147 Ga. 637(2), 95 S.E. 223; Benton Transfer Co. v. Marion Nat. Bank, 2......