Edwards v. Wall

114 S.E. 63, 29 Ga. App. 107, 1922 Ga. App. LEXIS 89

• Court: Court of Appeals of Georgia
• Decided: September 27, 1922
• Docket: 12491
• Status: Published

Opinion

Jenkins, P. J.

This is a suit by M. H. Edwards and T. H. Edwards against Elkins & Wall as a firm of lawyers, to whom, it is alleged, certain notes owned by the plaintiffs were turned over for collection. The petition sets forth that, while a portion of the proceeds collected had been paid over to them by Elkins, an alleged balance had not been accounted for by the partnership

It appears, from the evidence for the plaintiff’ that the notes were, through another lawyer, delivered in person to Elkins; and from the evidence of the debtor it is shown, without dispute, that the money called for by the notes was paid by him to Elkins. Wall alone defended the suit, and he set forth as a part of his defenses that the claim in question had not been turned over to the partnership of Elkins & Wall which for a time existed, but that the notes were delivered to Elkins in an individual and friendly transaction between him and another lawyer representing the plaintiffs, and that Wall had never heard of the collection of these notes until more than two years after the dissolution of the partnership. The defendant Elkins died pending the litigation, and his executrices were made parties defendant thereto. The contention stated in the brief of counsel for the defendant Wall, other than as is disposed of by the first three headnotes, is that “the burden in this case was on the plaintiff to show by proof that the notes were delivered to the firm of Elkins & Wall, or some member thereof, at a time when the firm was in existence, or, failing to do that, then to prove that the money was collected by the firm. The plaintiff failed to prove either of these things, and therefore the court was correct in granting a nonsuit.” There was introduced in evidence a letter to the plaintiffs, dated May 25, 1912, written on stationery of the firm commencing as follows: “ O. H. Elkins — Joseph B. Wall — Elkins & Wall, Attorneys at Law, Fitzgerald, Georgia. Messrs. M. H. & T. Ii. Edwards, Eastman, Ga. Gentlemen: We are in receipt of your letter addressed to our Mr. Elkins with reference to the claim in favor of yourself against Mr. Lon Dickey, which claim was turned over to us for collection by Col. Hal Roberts. We have not entered suit, and have been trying to make collection without suit.” In the course of this letter the further statement is made: “We have written you fully about the matter, so that you can discuss it with Col. Roberts and advise us about it. Unless advised to the contrary, we will institute suit in accordance with a notice this day given, a copy of which we hand you herewith.” This letter is signed “ Elkins & Wall,” and it was admitted in open court by counsel for Mr. Wall that the letter was signed in the firm name by him.

Without anticipating the evidence which may appear on a retrial, and without holding that the contention of counsel above quoted expresses with completeness the rules of law applicable to such a case, we do think that, upon proof of either of the propositions set forth by them, liability by the members of the partnership would attach, in the absence of any sufficient reason to the contrary which might be proven. It therefore follows that, under the statements contained in the letter quoted, and the admission made with reference to its authorship, the jury would have been authorized to find “that the notes were delivered to the firm of Elkins & Wall, or some member thereof, at a time when the firm was in existence;” in view of which, and in view of the ruling stated in the 3d headnote, the action of the judge in granting a nonsuit must be held to have been erroneous.

Judgment reversed.

Stephens and Bell, JJ., concur.