Porter v. Holmes , 122 Ga. 780 ( 1905 )

Evans, J.

(After stating the foregoing facts.) 1. On the call of the case in this court, a motion was made to dismiss the writ of error, because it did not affirmatively appear there was any service of the bill of exceptions on the defendant or his counsel after the signing of the certificate by the presiding judge. The certificate to the bill * of exceptions was not dated. Due and legal service of the bill of exceptions was acknowledged by the defendant’s attorney on September 5, 1904, and it was on that date filed in the clerk’s office. The bill of exceptions recited that the judgment overruling the motion for a new trial was rendered August 27, 1904. The motion to dismiss was based upon the principle enunciated in the cases of Bush v. Keaton, 65 Ga. 296, Vickers v. Sanders, 106 Ga. 266, and Cooper v. State, 121 Ga. 578. The case of Bush v. Keaton was decided at the February term, 1880, of this court, and in effect ruled that when the certificate of the presiding judge to a bill of exceptions was not dated, and the acknowledgment of service was dated, the writ of error should he dismissed because the service of the bill of exceptions did not affirmatively appear to have been made after the certificate of the presiding judge was attached thereto. The next year (1881), the General Assembly enacted that “No writ of error shall be dismissed in the Supreme Court because the clerk, sheriff, judge, or attorney at law shall have failed to affix a date to any official signature, unless it is made to affirmatively appear, by affidavit or other proof, in the Supreme Court that such official signature was made after.the time required by law.” Civil Code, § 5566. This provision of the code was construed in Swatts v. Spence, 68 Ga. 496,and it was held that “Since the act of 1881, if the certificate of the presiding judge to the bill of exceptions is not dated, it will be presumed to have been made on the day of the acknowledgment of service by counsel for defendant in error.” When Vickers v. Sanders and Cooper v. State were under consideration, the attention of the court was not called to the case of Swatts v. Spence, 'supra, and in the great pressure of work it was overlooked by this court. In so far as the later cases of Vickers v. Sanders and Cooper v. State conflict with Swatts v. Spence on this subject, they must yield to the older case. Calhoun v. Cawley, 104 Ga. 344. It will therefore be presumed that the judge’s certificate was signed on the day that service of the bill of exceptions was acknowledged. Where the certificate of the judge and the acknowledgment of service bear the same date, the signatures will be presumed to have been made in their chronological sequence, and especially so when the acknowledgment of service admits “due and legal service.” Cowart v. Page, 59 Ga. 235. The motion to dismiss the writ of error is denied.

2. The evidence shows that the plaintiff was an. officer of the insurance company. By the terms of the policy the premiums were payable in cash. The agent soliciting the insurance accepted the note in suit in lieu of the cash, and discounted it with the plaintiff. The insurance company had no interest in the note, and the plaintiff purchased it before due, as an individual investment, and not as a representative of the company. The soliciting agent was to receive a certain proportion from tire first premium, as his commission,' and, from the proceeds of the sale of the note to the plaintiff, the soliciting agent, Wyatt, paid to the company its share of the premium, retaining the balance in satisfaction of his commission. When the defendant offered to prove his complaint to Wyatt, made about two weeks after the execution and delivery of the note, to the effect that there was an error in his middle name, and Wyatt promised to have the mistake corrected but failed to do so, objection was made to this testimony on the ground, that the plaintiff was a bona fide purchaser before the maturity of the note, which was negotiable, and that he was not bound by any equities existing between the maker and the payee. The court overruled the objection. The plaintiff was secretary of the insurance company, and notice will be imputed to him off everything which the application for insurance or the policy contained ; but if he purchased the note given for the premium without notice of any understanding had with the insured and the soliciting agent, he would not be bound by such agreement or promise. Shedden v. Heard, 110 Ga. 461. It does not appear that there was a written application for insurance, or, if there was one, that the middle name of the insured as given in the application was different from that contained in the policy. The possession of the insurance policy was retained by the defendant after the discovery of the mistake; he made no request of the company to correct it. An error in the middle name of the insured in a policy of life-insurance will not, after his acceptance of the policy, constitute a valid defense to an action upon a promissory note given for the amount of the first premium due upon the policy, unless it affirmatively appears that after discovering the error the insured made a proper request for its correction and the same was refused. Jones v. Methvin, 97 Ga. 449. The court should have excluded the testimony. Even though the plaintiff had not purchased the note before due and without notice, the evidence was insufficient to sustain the plea of want of consideration.

3. The defendant in error insists that the verdict was demanded by the evidence, because the policy was not issued in compliance with the charter of the insurance company. The charter provided that the insurance company should have power to set aside or reserve a stipulated portion of premiums for expenses in conducting the business of the company, which portion of premiums should be stated in the contract with the insured. The policy did contain a stipulation as to a reservation of premiums for expenses, which stipulation is set forth in the foregoing statement of facts. This was a substantial compliance with the direction in the charter on this subject. The amount reserved for expenses by this stipulation may have been too small or too large to meet the necessary expenses in conducting the business. When the policy was received by the assured, he should have declined to accept it, if he was not satisfied with the allotment of premiums for expenses. He did not do this, and he will be presumed, from his acceptance of the policy, to have assented ■ to the apportionment of premiums for expenses as expressed in the contract of insurance. The court erred in refusing a new trial; and the judgment overruling the motion for a new trial is

Reversed.

All the Justices concur, except Candler, J., absent.