Savannah Bank & Trust Co. v. Hartridge , 75 Ga. 149 ( 1886 )

Blandeord, Justice.

Milo Hatch, the cashier of the plaintiff in error, entered into a contract with defendant in error whereby Hartridge was to purchase certain shares of the stock of the Central Railroad for Hatch. Hartridge was to give his note to the bank and to deposit the stock as collateral security for the payment of the same, and Hatch was to advance the money of the bank to Hartridge to pay for this stock. This contract was consummated between Hatch and Hart-ridge. This contract was contrary to the rules of the bank, which was known to both Hatch and Hartridge. This, then, amounted to a misappropriation of the funds of the bank, for which both Hatch and Hartridge were liable to the bank. See Code, §3151.

Hartridge afterwards applied to Hatch for leave to sell the stock, which Hatch agreed to. Hartridge effected a sale of the'stock, and applied to Hatch to transfer the stock to him, so that he could consummate a sale of the stock. This Hatch refused to do, Hartridge stating that he wished to sell the stock and pay off his note. The bank was not informed of this transaction until long after this.

1. We held, when this case was tried at the September term, 1884,^* that as this was an illegal transaction between Hatch, the cashier, and Hartridge, the knowledge of Hatch was not the knowledge of the bank, and it was not bound thereby. Nor does it appear from this record that the bank in any manner ever acquiesced in, consented to or ratified anything which Hartridge and Hatch did, further than to hold Hartridge’s notes, and the securities pledged for its payment, which it had the right to do; and as we held before, we now hold that the charge of the court as to the plea of recoupment and set-off is erroneous. It was erroneous then, and is now erroneous, because the charge is based on a hypothetical state of facts not warranted by the evidence in the case.

2. The request of the plaintiff to charge as set out in the thirty-third ground in the motion for new trial was legal and pertinent, and should have been given by the court, and it was error to refuse to charge this request.

, 3. The verdict of the jury is wholly without evidence to support it, and a new trial should have been granted on this ground! The last trial of this case in the court below developed no new facts which materially affect this case, and we think that the decision of this court rendered at the September term, 1884, rules and decides it.

Let the judgment of the court below be reversed.

* 73 Ga., 223.