Massengill v. First National Bank ( 1886 )

Jackson, Chief Justice.

The Bank of Chattanooga sued James Massengill for seven hundred dollars, borrowed from the bank by Massengill. No plea appears of record. We suppose that the general issue was in, but it is not set out in the transcript, and no allusion to any plea is in the bill of exceptions.

The case was defended by counsel, however, a recovery was had for the bank, and without making any motion for new trial, the case is brought up on exceptions to rulings of the court.

1. The first exception is that the court erred in admitting as evidence a draft, with certain bills of lading attached thereto, of bark consigned to the drawees, commission merchants or factors, in Cincinnati, on the ground that the money was loaned on this draft given at the time, and that the contract of loan was contained in the draft, and suit should have been brought on it, and that there could be no recovery on it, because it made a .contract conditional on presentation for acceptance and notice of dishonor; bnt neither presentation to the drawees nor notice to the drawer was in proof.

Fraud vitiates all contracts. Code, §2751. Misrepresentations by one party, designed to deceive the other, or if not designed, actually deceiving the other party, make fraud and void sales, even where the party did not know the misrepresentation was false. Any artifice designed to mislead is sufficient evidence of fraud. Code, §2634. It is subtle, and slight circumstances are sufficient to convey conviction of fraud. Code, §2751.

Even, therefore, if the contract was embodied in the draft, and the facts and circumstances show that the borrower gave it with the bills of lading with the intent to deceive and defraud the bank, and the bank became aware of it, it had the right to repudiate the draft as void, and sue upon the account for money loaned; and so doing, it had the right to put in evidence the draft with the bills of lading attached, and then follow up this evidence with letters written by the drawer to the drawees showing his intention to appropriate the goods—in this case bark—or rather the proceeds, to other uses than to pay the money loaned by the bank. So we think the draft and the bills of lading were admissible.

2. It follows also that the letters to the drawees, directing them to send the money for which the bark was sold to the drawer directly, and their checks in response, with no allusion to this money borrowed from the bank and of his draft and bills- of lading deposited to secure that money so borrowed, as well as all that the drawer said, as proved by the bank by interrogatories of the cashier touching his conduct during the negotiation and afterwards, were properly admitted to show the intent from the beginning and all the while to cheat the bank.

3. It also follows that the requests to charge, based upon the idea that the whole contract was in the draft, and therefore no suit could be maintained on the account for money loaned, and that there could be no recovery out of the drawer without notice to the drawer of the dishonor of the draft, were all properly refused without more, because all such requests to charge should have been qualified with this proviso, to-wit, provided that there was no fraud in the drawer to palm -off this written contract on the bank with the view to cheat and defraud it.

4. The real question is one of fraud or no fraud. The full charge is not given. No exception is taken to it. The refusal to charge the written requests is the only error assigned connected with it; and the presumption in such cases is that the charge was right.

5. There being no motion for a new trial, the question whether the verdict is supported by the evidence is -not before us. It is for the jury to trace and determine its subtleties, and there it is left, plaintiff in error not attacking the verdict of the jury by a motion to set it aside, but assigning errors only on the evidence which the court admitted and the requests to charge which it refused.

It is unnecessary, therefore, for us to examine the facts closely to find that they sustain the verdict. If so, doubtless, from a bird’s-eye view of them, the task would be easy. Certainly there should have been no nonsuit on such an issue and under such facts. Dawson vs. Pennaman, 65 Ga., 698.

Judgment affirmed.