DocketNumber: 22809
Citation Numbers: 47 Ga. App. 353
Judges: Stephens, Sutton
Filed Date: 8/18/1933
Status: Precedential
Modified Date: 1/12/2023
The Decatur Developing Company brought-a suit sounding in tort against J. W. and A. W. Feeney, doing business as J. W. Feeney & Son, in which it made substantially this case: The defendants drew several drafts, payable to the Decatur Bank & Trust Company, on certain customers of theirs. At the special instance and request of the defendants the bank advanced and credited to their account with it the amounts of such drafts, with the understanding with the defendants that the sums would be paid to the bank by the consignees of certain shipments of hay, on whom the drafts were drawn; and in each instance the defendants agreed to reimburse the bank in the event the consignees failed or refused to take up the drafts for full value when presented. The consignees refused to honor these drafts, and they were returned to the bank unpaid. In the meantime the defendants had cheeked out from the bank the sums of such drafts. The defendants did wilfully, fraudulently, and with intent to deceive, sell, bargain, or otherwise dispose of the shipments of hay to the various consignees or to other parties, without the consent of the bank, and did receive the sums therefor, and did not reimburse the bank in any amount, despite the fact that payment thereof was demanded of the defendants by the bank. Thereafter the bank was taken over by the superintendent of banks; and the superintendent, by virtue of an order of the superior court of Delvalb county, transferred to the plaintiff for value all the assets of the bank, including the drafts so drawn by the defendants.
The defendants demurred to the petition as setting forth no cause of action against them, in that the bank could not transfer to the plaintiff a cause of action for fraud. The court overruled the demurrer, and the defendants excepted.
When the consignees of the hay refused to pay the drafts, the title to 'the hay did not pass to the bank, but remained in the defendants. When the defendants took this hay and disposed of it and pocketed the money received therefor, refusing to pay the money over to the bank, in view of their distinct understanding with the bank that if the consignees did not honor the drafts they would pay the same, the defendants perpetrated a fraud on the bank. For them to dispose of this hay, with no intention of reimbursing the bank, which had advanced them the money thereon upon their representations that they would so reimburse it, was
When the affairs of the bank were taken over by the superintendent of banks, and by virtue of the order of court all its assets were transferred to the plaintiff for value, this constituted an assignment of these assets, which included the drafts, to the plain
Judgment reversed.