First National Bank v. Kirkland , 21 Ga. App. 608 ( 1918 )

Jenkins, J.

(After stating the foregoing facts.) Irrespective of whether or not under the circumstances of the case the Gadsden bank was the joint agent of plaintiff with Kyle in taking the renewal note, or whether the Gadsden bank in returning the note and stock to Kirkland acted as a mere volunteer and without authority, upon the idea that its sole duty was that of a collection agent with power to collect the old note and remit proceeds, or transmit the new note as taken by Kyle, the sole agent of the Chattanooga bank for that purpose,' we do not think that the plaintiff bank can come into court holding on to both the old and the renewal note and claiming title to and liability under each, even though it be willing to renounce its claim upon the former after receiving back the latter. Its claim must rest in one or the other of these inconsistent rights. It can not claim both until its rights are adjudicated. Nor do we think that it should be able to compel the return of the property sued for, while renouncing for itself the agreement by which it claims the note and stock were delivered.

Judgment affirmed.

Wade, Q. J., and Luke, J., concur.