Commercial Bank v. Tucker

Lumpkin, Justice. The Commercial Bank of Albany brought an action .against A. W. Tucker; a nonsuit was granted, and the plaintiff excepted. The substance of the declaration, and of the evidence offered in support of it, appears in the official report. 1. We have given the declaration a very thorough and careful examination. Taking into view all of its allegations, we do not think it can be fairly construed as being either more or less than an action by the bank against Tucker for money loaned or advanced to him upon his pi’omise and undertaking that he would turn over and deliver to the bank drafts drawn by the Georgia and Carolina Melon Exchange, a company of which he was the treasurer. As will be seen by reference to 'the reporter’s statement, the declaration alleges that the [302] plaintiff paid the drafts “simply as a matter of accommodation to defendant”; that “he well knew the failing condition of the exchange when he borrowed said money of plaintiff”; that “said drafts were paid by plaintiff on the faith of the responsibility of defendant”; and that “he became liable and . . . undertook and promised to pay plaintiff” the sum so advanced. These, and other like expressions in the declaration, bear out, we think, the construction we have placed upon it. An examination of the evidence will show that it does not support the declaration. The case made by the proof was, that the money was not loaned or advanced to Tucker individually, but to the company he represented; and although there was evidence that Tucker did contract and undertake, as alleged, to turn over and deliver to the bank drafts drawn by his company on melon shipments, there is a fatal variance between the declaration and the evidence in the vital respect above pointed out. An averment that money was loaned to an individual, or advanced to him, is not supported by proof that it was loaned to a cbmpany for which he was acting. The two things are necessarily inconsistent. 2. The judgment of nonsuit, for the reasons above stated, was clearly right, and is therefore affirmed. But we have given direction that the plaintiff may amend his declaration, at or before the time when the remittitur from this court is entered in. the court below, so as to make the pleading and the evidence correspond; and that upon this being done, the case be reinstated. Our reason for giving this direction is, that the case made by the evidence seems to be meritorious; and if the plaintiff really is entitled to a recovery, it ought not to be defeated upon mere technical rules, however correct. "Without making now any absolutely binding or definite adjudication that the plaintiff is entitled to recover upon the facts proved, we simply rule that the case appears [303] to be one woi’thy of further investigation. The trial court may be able, without serious difficulty, to arrive at a just and lawful conclusion when the defendant’s side of the case has been brought out by the evidence. Whether or not he is protected by the statute of frauds; or, independently of this question, is for any other reason not liable, can better be determined after the whole case has been developed. Judgment affirmed, with direction.