Daniel & Co. v. Tarver

70 Ga. 203

• Court: Supreme Court of Georgia
• Decided: April 17, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

1. The verdict in this case was for the plaintiffs. The defendants were granted a new trial, and the plaintiffs excepting to that judgment, bring this writ of error here. They also excepted to many rulings of the court on the-hearing before the jury; but all these were stricken here because the time had elapsed within which they could be excepted to.

The grant of the new trial alone on the grounds that it is contrary to law, to the evidence and to the charge will be considered.

2. They make a single point: Is the sale of an account in gross, and not itemized, a valid consideration to support a promissory note, payable in bank, and renewed once with a surety thereto, where the account was not sued or1 attempted to be sued by the maker of the note, but presented for payment and refused, after being held some time, and when the maker of the account was insolvent, and the intention of both parties to the trade was to pass full title to the account?

The assignment should have been in writing, in order to pass the legal title. Code, §2244; 63 Ga., 681.

But has the consideration on which the promissory note-was given wholly failed by reason of that not being done?

The man who owed the account when it was presented failed and refused to pay it, not because the title was not good in him who presented it, nor for the want of a bill of particulars, but because he was insolvent. The suit could have been brought in the name of the parties who sold the goods, if suit had been necessary; or the assignment could have been put in writing, and the account all itemized, which the plaintiffs were ready to do; but the maker did not ask or desire this to be done, but was satisfied that be could not collect it, and to sue for it would liave been to send good money after bad, and to lose all at last. He knew tbe person who made the account; he had led the plaintiffs to credit him; he had bought the account at half price; he risked its being paid, and expected to make twice as muck as he gave for it; and when, after two months, he saw the maker of the account and found he could not pay it, he pleads total failure of consideration. When one takes the risk of the solvency of a debtor to another whom he had induced that other to credit, and gives his note for the account against that debtor at half its nominal value, and keeps the account until the note at ninety days is renewed, and the renewed note with security falls due, and then pleads total failure of consideration on the mere pretext that the legal title to the account did not pass so as to sue it in his own name, though he could have sued in the name of the seller, and when he could have got the writing by asking for it, so as to sue in his own name, if he desired to sue, but really had no such desire, and could have made nothing by suing, he ought in justice and equity to pay it, and a verdict finding that he shall pay it, predicated on these facts, is not contrary to law and ought not to have been set aside.

Judgment reversed.