Baldwin State Bank v. National Bank

Hill, J. (After stating the foregoing facts.) This case falls, within the decision in Freeman v. Exchange Bank, 87 Ga. 45 (13 S. E. 160). It was there held: “Generally, the payee of a bill of exchange, by indorsing it (otherwise in blank) For deposit to the credit of’ himself, .retains ownership not only of the bill, but of its proceeds until they are so deposited.” In the instant case the draft is indorsed: “For deposit in Nat’l Bank of Athens. . . To the credit of Webb & Crawford Co.” Prima facie the draft is a special deposit for collection, and does not pass title to the plaintiff bank. The instant ease is different from that of Fourth National Bank v. Mayer, 89 Ga. 108 (14 S. E. 891), upon which the trial judge based his decision. There a regular customer deposited with the bank his own draft payable to his own order, and indorsed, “For deposit to .the credit of” himself, and the same was entered to his credit on the books of the bank, and the draft was forwarded by the bank to another bank for collection. The drawer, “by the course of dealing” with the bank, had the right to check on such deposit, and his checks were honored. It was held in that case, under those circumstances, that the title to the draft passed to the first bank. But the presumption of law in the present case as to the draft itself, with the entries thereon, is that the title to the draft, under the Freeman case, supra, was in the drawers of the [184] draft; and that presumption has not been overcome by the plaintiff’s proof. The evidence of the plaintiff fails to show any “course of dealing,” or custom of the bank, or express or implied contract with the depositor, whereby the title to the draft should pass to the plaintiff bank. Prima facie the draft was deposited for collection. The plaintiff might go further and show, if it could, either such a “course of dealing” with the bank as that the title was to be in the bank, a custom to that effect, or an express or implied contract that the title was to be in the bank. But, so far as the record discloses, this was not done; and the presumption being that the draft was deposited for collection and that the title was to remain in the drawees, the court erred in directing a verdict for the plaintiff. 2 Morse on Banks & Banking (4th ed.), § 577; National Commercial Bank v. Miller, 77 Ala. 168 (54 Am. R. 50); Bell v. Somerville, 50 Fed. 647, 17 L. R. A. 291, 1 C. C. A. 598); Fayette National Bank v. Summers, 105 Va. 689 (54 S. E. 862, 7 L. R. A. (N. S.), 694 and notes). It is a question of fact for the jury to determine whether or not, under all the evidence as to the custom, course of dealing, or understanding, if any, the title to the draft passed to the plaintiff bank, or remained in the drawees. It is true that the cashier of the bank testified as to the draft that “It became the property of the National Bank of Athens immediately when it went to the credit of Webb & Crawford; the indorsement on the back made it absolutely the property of the National Bank.” But this evidence, which was not objected to for that reason, was a mere conclusion of the witness. On the trial of the case the cashier of the plaintiff bank was allowed to testify, over objection, that “Webb & Crawford Company were then given credit for that amount, $750.00, put to their credit subject to their check.” ' This evidence was objected to on the ground that the books of the bank would be the highest and best evidence that Webb & Crawford Co. were given credit for that imount and that the same was subject to their check. The court erred in allowing the witness to testify as above set out, without the proper foundation being laid. This court has held that “Parol evidence, is not, unless the proper foundation is laid, admissible to .prove either affirmatively what books of account or private writings do contain, or negatively what they do not contain.” Aspinwall v. [185] Chisholm, 109 Ga. 437 (34 S. E. 568). And while the Baldwin State Bank (the defendant) was not a party to the transaction of depositing the draft, the transaction as to it being res inter alios acta, the books of the plaintiff bank were admissible as a part of the res gestee, as tending to show whether or not that bank was an innocent purchaser of the draft and whether, the title passed to it as such. Judgment reversed. All the Justices concur.