First National Bank v. Atlanta Rubber Co. , 77 Ga. 781 ( 1886 )

Blandford, Justice.

The Willow Brook Manufacturing Company, of North Carolina, being indebted to the Atlanta Rubber Company less than three hundred dollars, the latter company sued out an attachment against the former company and caused’ certain insurance companies to be garnished. The Winston National Bank dissolved these garnishments by interposing a claim in accordance with the statute. Upon the trial of the claim case, it was contended, on the part of claimant, that the policies of insurance had been transferred and assigned to the bank after the loss and before the garnishments had been served on the insurance companies by the manufacturing company, to pay an indebtedness which the Willow Brook Company owed the bank. The Rubber company insisted that the assignment of these policies was void, because the same was made to hinder, delay and defraud the creditors of the Willow Brook Company. On the trial, the testimony of the cashier of the bank, taken by commission, was read, and in answer to the question of the plaintiff as to the indebtedness of the Willow Brook Company to the bank, he stated that the Willow Brook Manufacturing Company and one Causey, who was its superintendent, were indebted about twenty thousand dollars; and in answer to the interrogatory as to how much the bank had received from the insurance companies, he stated that the bank had collected the whole loss, as shown by the adjustments and the bank’s receipts upon the policies. The evidence of the adjuster showed that the adjustment of loss among the several companies amounted to twenty thousand three hundred and nine dollars. The court, among other things, charged the jury upon the law as to fraudulent assignments. To the charge the plaintiff in error excepted, and assigns the charge as error, not because the same is not correct as applied to the law of the subject, but because there was no evidence which authorized a charge on this subject, and that the charge is merely abstract.

1. With this view this court does not concur. The questions in the case were, whether the assignments of these policies of insurance had been made at all, and if made, that the same were not made in good faith to secure the bank in the indebtedness of the Willow Brook Manufacturing Company, but to defraud the creditors of this company. The bank testified in the case by its cashier, and it knew the exact amount of the indebtedness by the Willow Brook Company to the bank, and could have stated it, but did not, but in lieu thereof stated that the indebtedness of both Causey and the Willow Brook Company was about twenty thousand dollars. It is a well-settled, rule, where a fact rests in the knowledge of a party, and he‘ fails to make it appear so as to clear up the case, that the jury may infer against the party on that account; but when, the fact is concealed by a party when interrogated thereto,' this of itself suggests fraud. Open and fair dealing required this bank to state-fully the indebtedness of the Willow Brook Manufacturing Company to the bank. The' bank knew, or ought to have known, what amount of money it had received on account of the insurance policies transferred to it by the Willow Brook Company, and it failed to state this in answer to interrogatories put to it by the Rubber Company. This all had the appearance of concealment on the part of the bank. The testimony showed that the bank had received three hundred and nine dollars more than the indebtedness as stated from the Wil-low Brook Company to the bank. All these things called-for the charge as given by the court.

2. We think the evidence of Jenkins was properly admitted to contradict Causey, and there was no error in ad-mitting the same.

. 3., We are satisfied'with the verdict, and that there wás no error in refusing the new trial.

j udgment affirmed.;