Wright v. Trust Co. of Ga.

• Decision Date: 05 December 1963
• Docket Number: 40412,Nos. 40381,No. 1,s. 40381,1
• Citation: 108 Ga.App. 783,134 S.E.2d 457
• Parties: Max WRIGHT et al. v. TRUST COMPANY OF GEORGIA. TRUST COMPANY OF GEORGIA v. Max WRIGHT et al
• Court: Georgia Court of Appeals

Page 457

134 S.E.2d 457

108 Ga.App. 783

Max WRIGHT et al. v. TRUST COMPANY OF GEORGIA.

TRUST COMPANY OF GEORGIA v. Max WRIGHT et al.

Nos. 40381, 40412.

Court of Appeals of Georgia, Division No. 1.

Dec. 5, 1963.

Rehearing Denied Dec. 18, 1963.

Syllabus by the Court

1. The motion for judgment notwithstanding the verdict is sufficiently predicated on the grounds of the motion for a directed verdict to entitle it to be considered on its merits.

2. The evidence in this case is uncontradicted that the defendant bank which was the drawee on one of its depositor's checks received an order to stop payment on the check prior to the time the instrument was certified by the bank.

3. When payment has been stopped on a draft given to the bank in exchange for its cashier's check, the bank has received no consideration for its own check and is liable on it only to a holder in due course.

Max Wright, a real estate broker, received a check dated September 26, 1962, from Howard George, the maker, for the face sum of $1,485 containing a notation, 'Ernest money--to be deposited only on completion of real estate transaction,' which he procured to be certified by the drawee, the defendant Trust Company of Georgia, on November 7, 1962. On November 12, the certified check which had not yet been deposited was exchanged by the plaintiff's agent for a treasurer's check of the drawee and was duly deposited in another bank. On November 16, George received the bank statement, called the bank and informed it that he had stopped payment on the check, whereupon the defendant credited George's account and stopped payment on the treasurer's check. The plaintiff discovered this fact on November 26, and his agent immediately took the check to the defendant where it was exchanged for another treasurer's check. Before the latter could be deposited payment on it was also stopped. The plaintiff alleged that these acts were done in bad faith, and that he is entitled to the face amount of the check plus attorney fees. A verdict was returned in accordance with his contention. The defendant thereafter filed its motions for a judgment notwithstanding the verdict and for a new trial, both of which were granted. The plaintiff assigns error on these rulings, and the defendant by cross bill of exceptions also assigns error as to certain rulings adverse to him.

Schwall & Heuett, Emory A. Schwall, Atlanta, for plaintiffs in error.

King & Spalding, Charles H. Kirbo, Henry Hall Ware, III, Atlanta, for defendant in error.

RUSSELL, Judge.

1. A motion for a judgment notwithstanding the verdict should be made in accordance with the grounds of the antecedent motion for a directed verdict. Grigsby v. Fleming, 96 Ga.App. 664, 101 S.E.2d 217; Durden v. Henderson, 212 Ga. 807, 96 S.E.2d 362; Sunbrand Supply Co. v. Garment Finishing Equipment Corp., 99 Ga.App. 72, 107 S.E.2d 680. One of the grounds of the motion for a directed verdict was that the plaintiff (who had elected to proceed in tort) offered no evidence of the commission of a tort by the defendant. The motion for judgment n. o. v. contained the grounds that the evidence demands a finding the defendant acted in good faith, there was no evidence the plaintiff was injured, and the uncontradicted evidence shows the plaintiff is not entitled to recover. The tort which is the gravamen of the suit is that the defendant made fraudulent misrepresentations on which the plaintiff relied to his injury in that it issued the direct obligations of the bank to the plaintiff in bad faith intending at the time of issuance not to honor them. There can be no evidence to sustain a verdict as to such a tort without evidence from which the jury is authorized to find the plaintiff is entitled to recover: that is, that a tort was committed, that it was in bad faith, and that the plaintiff was injured thereby. The grounds of the second motion are sufficiently predicated on the first to allow consideration of the motion for judgment notwithstanding the verdict on its merits.

2. One of the issues in the case is whether the evidence demands a finding that George, the maker of the check, ordered payment stopped prior to its original certification by the defendant. This witness testified: 'I had occasion to stop payment * * * I believe the 6th of November, 6th or 7th, in the east Atlanta Branch, around 9:30 in the morning. I don't believe it could possibly have been the 7th * * * I'm sure it was the 6th. I got that acknowledgment on a Tuesday, it was on the 7th, I could have gotten it the 8th or 9th. * * * It could not have been November 8th I gave them that undated stop payment order, it could not have been on the 7th, it was on the 6th. It was on a Monday. I know that it was on a Monday morning that the stop payment was turned in down there. That would have been November 5th according to this calendar. It was on a Monday, I know. It was on the 5th. I don't know positively whether I entered the stop payment order on the 6th or 7th but I recall that it was on a Monday morning.'

The plaintiff introduced in evidence a printed stop-payment form signed by Howard L. George at the branch office ordering payment stopped on this check, which form was undated. The defendant introduced a like form filled in at the main office, dated November 6, 1962, at 10:10 a. m. requesting payment stopped on that date. The testimony was that the employee at the branch office, immediately on receiving the information, customarily telephoned it to the office where the depositor's account was located; that it was there noted on a stop payment request form and classified as either dangerous or nondangerous; that this one was classified nondangerous because the check was more than thirty days old, and accordingly the information was posted in the files in the main office bookkeeping department but the account itself was not flagged, so that if the check was presented for payment they would have no way of knowing that payment had been stopped. The witness recognized the handwriting of the employee who had filled in the request form and verified that this was according to standard procedure. There was also in evidence a properly identified acknowledgment of the stop payment order, which was the carbon copy of the original mailed to and received by George, dated November 7, and acknowledging receipt of the request dated November 6. No other evidence in any way sheds light on the time element.

It is contended that George's testimony as to the date on which payment was stopped is so confused and contradictory that it has no probative value, and it is true that his statements do not exclude the possibility that he might in fact have ordered payment stopped on November 7, which was the day the check was certified. The bank records, however, affirmatively show that payment was stopped on November 6, but that because the customer's account was not flagged this fact went unnoticed until after the certification of the check by the bank. These documents were admissible under the Georgia business record statute and they are not contradictory of George's testimony, except that George thought he stopped payment on Monday rather than Tuesday before the check was certified on Wednesday. 'It is true that when the proper foundation has been laid and business records have been admitted in evidence their weight and credit is for the jury. * * * It does not follow, however, that business records when undontradicted should be treated differently from any other kind of uncontradicted evidence. The statute, Code Ann. § 38-711, itself provides that it shall be liberally interpreted and applied. Books of account when admitted under such a statute are prima facie evidence of the facts they state, and when not contradicted or explained may become conclusive.' One In All Corp. v. Fulton National Bank, 108 Ga.App. 142, 144, 132 S.E.2d 116. In that case it was held that such records, uncontradicted, would be sufficient to sustain a directed verdict. The same rule would apply on the weight of such evidence to sustain a motion for judgment notwithstanding the verdict. The evidence thus establishes that the bank received instructions from its depositor to stop payment of the check on November 6, 1962, and that its certification of the check on November 7, was due to inadvertence because, the check being more than...