Citizens Banking Co. v. Southern Fertilizer & Chemical Co. , 1921 Ga. App. LEXIS 928 ( 1921 )

Bloodworth, J.

The petition in this case consists of two counts. A demurrer to each was overruled. The brief of counsel for the plaintiff in error discusses the ruling on the demurrer as to the first count only. So the sole question for us to determine is whether or not the demurrer as to that count is good. That count gives a description of the notes sued for and states the balance due thereon, alleges that the notes were delivered by the plaintiff to the defendant, the Citizens Banking Company, which was to collect them and remit the net proceeds to the plaintiff ; that the makers of the notes were solvent, and that the bank negligently and fraudulently converted the notes by delivering the same to the makers thereof without collecting' the balance due thereon. The petition sets out a cause of action, and is sufficient to withstand a general demurrer, and a special demurrer on the ground that “ it appears affirmatively from the petition in said case that the makers of said notes are solvent, and that the defendant in this case did not collect the money covered by notes which were delivered to maker by mistake or oversight,” and that “ plaintiff seems to have selected defendant against whom to bring suit, rather than institute proceedings against one of its customers.” In Hobbs v. Chicago Packing Co., 98 Ga. 580 (1) (25 S. E. 786, 58 Am. St. Rep. 320), it was held: “A wrong delivery of goods, either negligently or wilfully made, by one who had been entrusted with the custody of them, is in law a conversion by the latter.” Savannah &c. Ry. Co. v. Sloat, 93 Ga. 803 (20 S. E. 219); 38 Cyc. 2011 (d); Lowremore v. Berry, 19 Ala. 130 (54 Am. D. 188); Hicks v. Lyle, 46 Mich. 448 (9 N. W. 529).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.