Freeman v. Savannah Bank & Trust Co.

14 S.E. 577, 88 Ga. 252, 1892 Ga. LEXIS 6

• Court: Supreme Court of Georgia
• Decided: January 11, 1892
• Status: Published

Opinion

Judgment affirmed.

Banks. Forged indorsement. Before Judge Harden. City court of Savannah. July term, 1891.

An action for money had and received was brought by Freeman. The court directed a verdict for the defendant, and afterwards overruled a motion for a new trial; and the plaintiff excepted. The facts are as follows :

In February, 1891,'the plaintiff sent a raft of timber from Wilkinson county to Darien, Georgia, by one Day, instructing him to sell the timber and bring the plaintiff a check for the amount due him. On March 2d, the defendant received by mail from the Bank of Darien a check dated at Darien, Georgia, February 27, 1891, for $278.81, drawn on the defendant in favor of the plaintiff by the Hilton & Dodge Lumber Company. It was indorsed with the plaintiff’s name, and also : “Pay to the order of Savannah Bank & Trust Company for collection for account of The Darien Bank, Darien, Georgia. Frank S. Bander, Cashier.” The defendant, having funds of the drawer for the purpose of paying its checks and having no notice of any trouble about the plaintiff’s indorsement, credited the Bank of Darien and charged the drawer the amount of the check. On March 7th, the defendant received from the plaintiff a telegram describing the check and stating that it had mysteriously disappeared; also, “Do not pay; wire me if any one presents it; if so, indorsement forged.” The defendant sent in reply a telegram stating that the check had been paid to Darien Bank March 2d. On May 2d, the defendant returned the check to the Bank of Darien, charged the amount to that bank and credited the drawer with the same amount, writing the Bank of Darien, “We have received notice from Mr. Freeman that the indorsement thereon is a forgery ; hence we return to you and charge your account accordingly.” Before this suit was brought, there was a demand by the plaintiff' and a refusal by the defendant to pay; and the plaintiff also offered to indemnify the defendant against any loss -it might sustain on account of the check if paid to plaintiff. The check was obtained for use in this case from the Darien Bank on subpoena duces tecum, and was introduced in evidence. Across its face are the words : “Savannah Bank & Trust Co. Paid March 2, 1891.” It showed that it had been stuck on a file.

Wm. B. Stubbs, for plaintiff,

cited Morse, B. 407, 414, 451, 460, 474a, 499, 507, 511d, 513; 12 S. W. 920; 2 Fed. R. 125; 73 Penn. St. 483; 100 Id. 23; 9 N. Y. 466; 17 Id. 207; 20 Ohio, 234; 2 Dan. Neg. Inst. 1648; 2 Duer, 121; 71 Ga. 33; 15 Cal. 344; 29 Wis. 611; 47 N. W. 632; 33 Id. 555; 1 H. Bl. 239; 14 La. An. 481; 78 Ga. 228; 79 Ga. 816; 81 Ga. 597; 74 Ga. 150; 73 Ga. 385; 69 Ga. 195; 65 Ga. 277; 37 Ga. 424; 7 Ga. 195, 688; 1 Ga. 141, 305; Code, §2780; 63 Wis. 20, s. c. 53 Am. R. 247; 25 N. E. 416; 2 Wall. 252; 25 Ill. 35; 3 Fed. R. 257; 8 Id. 106; Boone, Code Pl. §171.

Erwin duBignon & Chisholm, for defendant,

cited 2 Rand. Com. P. §§589, 644; 3 Id. §1486; 2 Morse, B. 795; 94 U. S. 343; 59 N. Y. 12; 114 Id. 28; 51 Ga. 325; 56 Ga. 88; 73 Ga. 384; 84 Ga. 403; 11 Atl. Rep. 440; 23 N. E. Rep. 900; 7 S. W. Rep. 101.