Refrigeration Supplies, Inc. v. Bartley ( 1977 )

McMurray, Judge,

dissenting in part.

I concur fully in the majority opinion and judgment of reversal with respect to the two defendant banks who put Charles Tomberlin, Inc. in position to collect the funds for the materials without paying the plaintiff for the materials and equipment as the checks were drawn payable to both. See Code Ann. § 109A-3 — 116 (Ga. L. 1962, pp. 156, 245).

However, as to the defendant Bartley the court did not err in granting summary judgment in his favor. Bartley issued the checks jointly to Tomberlin and the plaintiff purely as a convenience to himself and to insure that Tomberlin paid its bills for materials which were used in improving Bartley’s property. No lien was filed. No claim was made against Bartley.

The evidence here shows that prior to Bartley’s last payment to Tomberlin he was informed by plaintiff that Tomberlin had paid for all materials used on Bartley’s job, and as a result of this information, and relying thereon, Bartley paid Tomberlin the remainder of the contract price. Bartley’s obligation to Tomberlin has been paid and he is not in privity with the plaintiff. No fraud or misrepresentation has been shown which binds the defendant Bartley to the plaintiff. See Gaines v. American Title Ins. Co., 136 Ga. App. 162 (3) (220 SE2d 469).

Bartley is also cloaked with the protection of the maxims in equity that the equity of a party who has been misled is superior to that of him who wilfully misleads him. See Code § 37-109; also Code § 37-113 as to which of two innocent persons must suffer.

I would hold the court did not err in granting defendant Bartley’s motion for summary judgment and that part of the judgment of the lower court should be affirmed. Accordingly, I respectfully dissent to that part of the judgment of reversal.