Ware v. The City Bank Of Macon
| Decision Date | 31 August 1877 |
| Citation | 59 Ga. 841 |
| Parties | Mims S. Ware, executor, plaintiff in error. v. The City Bank of Macon, defendant in error. |
| Court | Georgia Supreme Court |
Negotiable instruments. Pleadings. Indorsement. Practice in the Supreme Court. Lien. Fees. Amendment. Before Judge Hill. Houston Superior Court. November Term, 1876.
The City Bank of Macon, on November 2, 1874, brought complaint against George S. Haslam, Jr., and Mims S. Ware, as executor of Shadrach Ware, deceased, for $1162. 79, besides interest, alleged to be due "on a certain instrument in writing in the form of a draft, dated June 7, 1873, signed *by said Haslam on the face and back thereof. and by said Shadrach on the back, requesting Campbell & Jones to accept the same for the accommodation of said George S. Haslam and said Shadrach, which the said Campbell & Jones did, due five months after date." Attached to the declaration was a copy of the instrument sued on. It was in the form of a draft, embracing within it a factor's lien on the drawer's growing crops and personalty, to secure the repayment of the advance and ten per cent. counsel fees; also a promise to deliver to drawees sufficient cotton to pay off the obligation at maturity. Across the face of this paper was written the firm name of Campbell & Jones. It was indorsed by George S. Haslam, Jr., and S. Ware.
Ware, executor, pleaded in substance, as fallows:
1. The general issue.
2. That testator was only a security on the note or draft, that both before and after said paper natured, this defendant notified the plaintiff, in writing, to proceed at once to collect the same out of the principal, George S. Haslam, Jr. That this notice was given in October and November, 1873, and in January, 1874 whilst no proceeding was taken against said Haslam until November, 1874.
3 That at the time said paper matured, said George S. Haslam, Jr., had in Campbell & Jones' warehouse, in the city of Macon, —bales of cotton, and this defendant notified the plaintiff, in writing, that said cotton was there stored, subject to the draft sued on, and to proceed to assert its lien thereon, which plaintiff failed to do for more than three mouths after said notice.
4th. That the plaintiff held other claims against said Haslam, which had no lien on the cotton in possession of Campbell & Jones, and that notwithstanding the written notice to plaintiff to proceed to assert its lien, it failed and refused to do so, but that on the contrary it allowed said cotton to be sold, and the proceeds to be applied to the payment of the other notes which it held against said Haslam.
According to the bill of exceptions, at the trial term. long *after the pleas were filed, the plaintiff amended by adding, in substance, the following averment: Petitioner further shows that George S. Haslam, Jr., and Mims S. Ware, executor, are indebted to it on a certain promissory note, made by said defendants in the form of a bill of exchange, drawn by the said George S., on Campbell & Jones, payable to the drawer's order, with the names of the said defendants written on the back of said bill, and accepted by the said Campbell & Jones, for the accommodation of said defendants.
As to this amendment the record is silent.
To the proposition to amend at the time when made, the defendant, Ware, executor, objected. The objection was overruled, and he excepted.
To the proposed amendment he objected, as being illegal and not in conformity to the statute, and because it contained new and distinct causes of action. These objections were overruled, and he again excepted.
He then demurred to the declaration as amended, upon the following grounds:
1. Because the acceptors were not joined in said declaration —that, as the plaintiff had elected to treat two out of the four parties to said paper as joint obligors, he was bound to join all of the parties, to-wit: the drawers, acceptors and indorsers, in the same suit.
2. Because the defendant's testator was only an indorser as appeared from the declaration and the instrument thereto annexed, and defendant, as his legal representative, should have been sued in that capacity, and not as a joint obligor.
3. Because the amendment set forth new and distinct causes of action
The court overruled the demurrer, and defendant excepted.
The facts presented by the testimony, so far as material, are stated in the opinion.
The court charged the jury as follows: "If you are satisfied from the evidence, that Campbell & Jones accepted the draftsued on as accommodation acceptors, at the request *of, and for the benefit of, Shadrach Ware, they, at the time, having no funds of the drawer in their hands, accepting it only on condition that said Ware had indorsed, or would indorse, said draft, to indemnify and protect them from the payment of the same as such acceptors then the plaintiff would be entitled to a verdict for the full amount of the principal of said draft, with interest on the same from the date thereof, at the rate of ten per cent. per annum, and also ten per cent. on the amount of principal and interest due on said draft at the date of trial, for attorneys\' fees, against the said George S Haslam, Jr., and the defendant, Ware, as executor of Shadrach Ware, deceased." To this charge the defendant, Ware, executor, excepted.
The jury found for the plaintiff $1,162.79, principal, with interest at 10 per cent. per annum, and 10 per cent. counsel fees.
The defendant, Ware, executor, assigns error upon each of the above grounds of exception.
W. S. Wallace; Lyon & Nisbet, for plaintiff in error.
Jno. C. Rutherford; Wooten & Simmons; Hall, Lofton & Bartlett, for defendant.
1. The action was against the drawer and the executor of the indorser. "In all cases the indorser may be sued in the same action, and in the same county, with the maker, or drawer, or acceptor": Code, sec. 2782. Under the constitution (Code, sec 5122,) it admits of question whether this provision for forcing the indorser to the drawer's county could not be resisted by timely objection to the jurisdiction. The language of the constitution is, that "suits against the maker and indorser of promissory notes, or other like instruments, residing in different counties, shall be tried in the county where the maker resides." "Other like instruments" will includebills of exchange; but after acceptance of a bill the *acceptor, and not the drawer, according to the common authorities, stands in the relation corresponding to that of the maker of a note: 21 Ga., 135; 1 Parsons on Notes and Bills, 54. The Code, however, seems to treat the drawer as maker: section 2773. But what the indorser might have donein the present case need not be considered, for he waived his right of objecting to the jurisdiction by pleading to the merits. The Code declares, in section 3461, that "if a defendant appear and plead to the merits, without pleading to the jurisdiction, and without excepting thereto, he thereby admits the jurisdiction of the court." The suit was returnable to November term, 1874. On the 24th of May, 1875, the indorser filed the plea of "not indebted, " and some special pleas setting up his discharge. The case was tried at May term, 1876. At no time, so far as appears, was any distinct objection presented to the jurisdiction of the court. It may be that it was the purpose to make that question by the various exceptions taken to the declaration before and after it was amended; but if so, there was no direct avowal of the purpose, and, moreover, all this occurred while the pleas to the merits were in. The waiver, under section 3461 of the Code, had already taken place. The pleas were never withdrawn.
2. The declaration seems to have stood in its original form, not demurred to or otherwise attacked, until the term of the court at which the trial took place. We think its original...
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Merchants' Nat. Bank v. Sevier
...to pay promptly, and his promise cannot be enlarged in any particular without his consent. This is merely dicta, however, In Ware v. City Bank, 59 Ga. 841, the action was the holder of a draft embracing within it a factor's lien on the drawer's growing crops and personalty to secure the rep......