Bank of Wrightsville v. Merchants & Farmers Bank , 119 Ga. 288 ( 1903 )

Lamar, J.

If the defendant had offered evidence to show that it had paid the amount due by it under the guaranty, it would have been inadmissible, there being no plea of payment filed. But such was not the case. The evidence was offered to contradict a material contention of the plaintiff'that “said Smith has failed and refused, and continues to fail and refuse payment of said balance due.” It was not evidence in support of a plea of confession of original liability, and avoidance because of subsequent payment, but went to establish the defendant’s contention that it was not liable as guarantor, because of the fact that the principal, Smith, had settled the debt. The answer .distinctly raises the issue, and the evidence in support thereof was relevant and admissible.

The charge of the court in reference to the duty of the plaintiff to apply the $2,306 was not such as to require a new trial. This was not a case in which the ordinary, doctrine of the application of payments controlled. The defendant insisted that the $2,306 draft, with the bill of lading for fifty bales of cotton, was intended and understood by all the parties to include the amount formerly due on the $1,446, draft with the bill of lading for thirty-one bales of cotton. And hence, though probably inaccurate, it was not reversible error to charge that “if you believe that the draft of $2,306 covered the amount of a draft for $1,446, and the Bank of Wrightsville knew that this draft covered this amount, or was intended by Smith to cover this amount, or ought to have known it by the exercise of ordinary diligence, and if Smith finally paid that draft, then I charge you that the Bank of Wrightsville could not have applied the payment of $2,306 to any general account Smith might have been due the Bank of Wrightsville, and the Merchants Bank would not be bound by any such application of payment, if such was made.” The charge must be construed in the light of the whole case, and in view of the fact that this is a suit, not against Smith, but against the guarantor. The $2,306 was the proceeds of a draft for that sum, and ,had to be applied to the debt represented by the draft. If the $1,446 was included therein, then by operation of law it also was satisfied and discharged so far as the guarantor was concerned, regardless of any actual or attempted application of the proceeds to any balance on open account or otherwise.

Beck’s certificate of the amount of Smith’s indebtedness to the Bank of Wrightsville was secondary evidence, not binding on the Merchants Bank. Beck was not the agent of the defendant, which had the right to cross-examine him.

It is not made to appear by the record how the plaintiff was injured by the charge of the court instructing the jury that they might consider the intelligence of the witnesses, in weighing the testimony. For aught that appears, it may have been helpful to the plaintiff and hurtful to the defendant. At any rate the plaintiff-fails to show that the charge, if erroneous, was harmful.

The evidence for tljie plaintiff was indefinite, even as to the amount it claimed to be due, dealingíin round numbers, and saying that the balance was about fifteen hundred and odd dollars. The guarantor was not liable for any indebtedness on account, but only for drafts with bills of lading attached. But passing that point, and irrespective of the defendant’s contention that the verdict was demanded by the evidence because of plaintiff’s failure to prove that it had sued Smith to insolvency, we find no error in the rulings or charge of the court. The evidence for the defendant was amply sufficient to warrant the verdict; and the judgment is

Affirmed.

All the Justices concur.