Robertson v. Glenn , 26 Ga. 555 ( 1858 )

By the Court.

McDonald J.

delivering the opinion.

The note sued on was sent to the plaintiff in the Court below for the purpose of being offered to Governor Gilmer, in part payment of a debt due to him by E. D. Robertson, the payee, and on which the plaintiff was his surety. The consideration of the note was a balance claimed to be due by the maker to the firm of Robertson & Crocker. The defendant sets up as a defence, a mistake of §400.in the balance against him, by a failure to pass to his credit on the books of that firm, the sum aforesaid, which had been sent them by George F. Platt, and by him paid to them on account of defendant. The plaintifi was of opinion that Governor Gilmer would not receive the note without security, and he so told the defendant, and a time was appointed to give the security. But for some unexplained cause the parties did not meet at the appointed time.

We cannot perceive how the conversation between these parties can affect the interest of the defendant in this Court. The plaintiff in error said nothing to mislead him, by which he sustained any loss. He gave up no security in consequence, nor did he assume any greater responsibility. He was, in fact, acting as agent for Robertson, and but for the direction in Robertson’s letter to him, to delay presenting the note to Governor Gilmer until he sent him a check, it would have been his duty to offer the note to him, and if he had refused to receive it, to have returned it to Robertson with that information. It is virtually the note of Robertson now, and any mistake in the amount for which Robertson filled the blank, or wrote the note over the signature may be corrected. The plaintiff no doubt conceived himself authorized, after E. D. Robertson absconded, to retain the note as collateral security; but if he was entitled to it as collateral security only, that gave him no right to exclude a defence by the maker, which he might set up against Robertson. He assumed Robertson’s position in all respects. This is my opiuion.

We think that the request in writing made of the Court by counsel of defendant ought to have been given in charge to the jury.

Judgment reversed.