Lilly v. Citizens Bank & Trust Co. , 44 Ga. App. 653 ( 1932 )

Bell, J.

Mrs. M. M. Lilly brought a trover suit against Citizens Bank & Trust Company of Bainbridge, Georgia, to recover a county warrant issued to her by the commissioners of roads and revenues of Thomas county. The trial resulted in a verdict in favor of the defendant. The plaintiff excepted to the overruling of her motion for a new trial.

The evidence was sufficient to authorize the verdict in favor of the defendant, and the judgment refusing a new trial is therefore not subject to reversal on the general grounds. The following is a copy of the instrument the title to which was in controversy:

“No. 22062. Office of Commissioners of Roads and Revenues, Thomas County, Georgia. Thomasville, Ga. Jany. 14, 1927.

’ “Ordered that the County Depositary pay Mrs.'M. M. Lilly the sum of three thousand five hundred dollars,

Charge to funds noted below

Roads: Bridges: Courthouse: Jail: City Court: Sup. Court: Pauper: General.

For loan to county at 6% due Dec. 31, 1927..........3,500.00. S. L. Heald, Clerk. J. F. Pittman, Chairman C. C. T. C.”

The plaintiff testified that this order or warrant was issued to her by the authorities of Thomas county as evidence of a loan of $3,500 which she made to the county, as indicated by the language and purport of the instrument, and that she authorized the delivery of the warrant for safekeeping to her son-in-law, C. P. Wester, who was cashier of Seminole Bank of Iron City. It further appeared from the evidence that Wester pledged the instrument to the defendant bank and trust company as security for a loan of $3,500, which he then and there obtained from the defendant for the use of Seminole Bank. The loan was made on February 19, 1927, long before the warrant was due, and Seminole Bank closed about May 6 while the loan was outstanding. The defendant made the loan in good faith, believing that the warrant belonged to Wester or the bank which he represented, and he had no information or notice of the claim of Mrs. Lilly until several months thereafter. At the time the warrant was pledged to the defendant it had the name of Mrs. Lilly written across the back of it, and, really, the only dispute in the evidence was as to the genuineness of this indorsement. Mrs. Lilly, the plaintiff, testified positively that she did not indorse the warrant or authorize anyone else to indorse it for her, and that the paper was absolutely unindorsed at the time she parted with it. Two other witnesses, however, compared the handwriting of several admittedly genuine signatures of the plaintiff with that upon the back of the warrant, and gave it as their opinion that the indorsement upon the warrant was made by the same person who executed the several signatures referred to. Each of these witnesses first testified to such facts as would qualify them as experts, and the writings themselves were introduced in evidence for inspection and consideration by the jury.

In addition to this, the cashier of the defendant bank and trust company testified to having participated in a previous conversation with the plaintiff, in which “she declined to admit or deny whether she indorsed the warrant,” but stated that the warrant was put up to secure a described loan and that when the loan was paid.off the warrant should have been returned to her. While the witness testified that the loan referred to by the plaintiff was not the identical loan made by the defendant on the faith of the pledge, the plaintiff’s refusal in that conversation either to admit or deny the indorsement, and her statement that the warrant had been pledged to secure a certain loan and should have been returned to her upon the payment of the loan, were circumstances from which the jury could draw inferences unfavorable to the plaintiff on the issue as to the genuineness of the indorsement; and upon a consideration of the evidence as a whole the jury were authorized to find against the plaintiff and in favor of the defendant upon that issue. In view of these circumstances, the evidence of the genuineness of the signature was stronger in the present case than in the case of Collins v. Glisson, 35 Ga. App. 111 (2) (132 S. E. 114), in which a dissenting opinion was rendered by Judge Stephens. The county warrant was an instrument the right and title to which could be transferred and assigned by indorsement and delivery. If the plaintiff delivered, or authorized the delivery of, the warrant to her son-in-law, Wester, only for the purpose of safekeeping, but if at the same time it bore her genuine signature as an indorsement thereon, the plaintiff thereby gave to the depositary such external indicia of the right of disposing of the warrant that he could, by pledging the same to an innocent person for a present consideration, divest the plaintiff’s title. Civil Code (1910), § 583. When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss. The evidence authorized the application of these principles and amply supported the verdict for the defendant. See, in this connection, Civil Code (1910), §§ 4119, 4537; Raleigh & Gaston R. Co. v. Lowe, 101 Ga. 320 (28 S. E. 867); Commercial Bank of Augusta v. Armsby Co., 120 Ga. 74 (47 S. E. 589, 65 L. R. A. 443). The present case is distinguished from Turner v. Williams, 29 Ga. App. 751 (2) (116 S. E. 553), in which the stock certificate was pledged not to secure a new loan, but as collateral to a pre-existing indebtedness.

The motion for a new trial contained a number of special grounds, but in these the chief complaint appears to be directed at an instruction, given in the language of section 583 of the Civil Code, that .“all county orders are negotiable by (delivery or indorsement, and the indorser liable according to the terms of his indorsement, as in commercial paper.” This charge was excepted to upon the ground that it amounted to a broad statement to the effect that “all county orders are negotiable,” without exception and regardless of whether they contain words of negotiability, and upon the further ground that the principle stated therein, being general in its nature,, did not apply to the county warrant in controversy, since the particular warrant contained no words of negotiability, and for that reason was not a negotiable instrument.

It does not seem to be material in this case whether section 583 of the Code was intended to provide that county warrants shall generally be treated as negotiable instruments, or, even if so, whether the particular order in controversy was an instrument of that character, although apparently each of these questions should be answered in the negative. Continental Trust Co. v. Butts County, 148 Ca. 623 (97 S. E. 679); Ga. L. 1924, p. 126, §§ 30, 65; Wall v. Monroe County, 103 U. S. 74 (26 L. ed. 430); 8 C. J. 599, 602.

The case turned entirely upon the question whether the warrant bore indorsement by the plaintiff at the time she delivered it or caused it to be delivered to her son-in-law, who pledged it to the defendant bank and trust company. The other facts were undisputed, and if the warrant was in truth so indorsed,- the verdict for the defendant was the only possible legal result; and this is true whether the warrant was a negotiable instrument or not. The court charged the contentions of the parties as to the one material issue just indicated, and adequately instructed the jury as to the law applicable thereto. Whatever may be the full meaning and import of section 583, it at least provides that the right and title in a county order may be conveyed by delivery or indorsement', as in the case of commercial paper, and the section was applicable in part, if not in whole, under the facts of the present case. Even assuming that some portion of this section may have been impertinent, the giving of the entire section in charge did not operate to the plaintiff’s disadvantage in relation to the sole question for decision by the jury. “It was not cause for a new trial that the judge read in charge to the jury a code section, part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable' part was calculated to mislead, the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.” Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405).

The record does not invoke a further construction of section 583. There is no merit in any of the other grounds of the motion for a new trial, and the court did not err in refusing the motion.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.