Boatenreiter v. Fulton National Bank

6 S.E.2d 148, 61 Ga. App. 521, 1939 Ga. App. LEXIS 471

Opinions

Felton, J.

B. W. Boatenreiter, trading as Mutual Supply Company, sued Fulton National Bank of Atlanta in trover for six checks signed by E. M. Williams, payable to Mutual Supply Company and C. B. Driskell, drawn on the National Bank of Monroe, alleging that C. B. Driskell wrongfully and without authority indorsed petitioner’s name thereon and that the defendant indorsed the checks guaranteeing the previous indorsements, on the strength of which the drawee bank paid the checks etc. Electing to take a money verdict the plaintiff prayed for a judgment for $735 and interest from date of demand. The bank defended on the ground that the payees on the checks had formed a partnership and the drawer of the checks had authorized the defendant to pay the checks to Driskell upon his indorsement, the drawer having stated to the defendant bank that the payees were partners. The plaintiff denied that a partnership existed. In view of the evidence it will be unnecessary to consider this phase of the case.

E. M. Williams secured a contract with the Federal government for the construction of a post office in Decatur, Georgia. Driskell obtained the sub-contract for installing the plumbing and heating fixtures for $3700. Driskell induced Mutual Supply Company to co-operate in the furnishing of the necessary fixtures. Driskell was a laborer,' a plumber, and Mutual Supply Company sold fixtures. Williams agreed to raise the heating and plumbing contract to $4000. We shall assume, for the sake of argument, as the plaintiff contends, that there was no partnership. Plaintiff’s evidence is to the effect that there was no agreement between Driskell and him as to a division of the money, no definite understanding as to what the plaintiff was to get for the fixtures and Driskell for his labor. Driskell swore that the agreement was that the-fixtures were to cost $3215.15. The evidence was that plaintiff advanced certain sums to Driskell in addition to the money derived from the checks, but the amount was not shown. The plaintiff received $2319.69. It put into the job in fixtures $3916.41. The evidence does not show how much Williams has paid on the contract.

Assuming that there was no partnership, the money received should have been divided between the parties on an equitable basis, according to the reasonable value of the labor and material furnished. If the bank is liable on the checks sued on, it would be liable only for the proportion to which the plaintiff was entitled. The evidence failed completely to provide any kind of facts or information from which it could be determined what that liability is. The same is true if the plaintiff agreed to furnish the fixtures at the amount stated by Mr. Driskell. The evidence did not demand a finding that Boatenreiter was the sole owner of the legal title to the checks, or that he was entitled to the sole and exclusive possession and right of control of the same, or that he was entitled to the entire, proceeds of the checks. In these circumstances the judge of the civil court of Fulton County, trying the case without a jury, did not err in finding for the defendant.

Judgment affirmed.

Sutton, J., concurs. Stephens, P, J., dissents.