Savannah Trust Co. v. National Bank

Wade, J. (After stating the foregoing facts.) 1. Error was assigned in the bill of exceptions as follows: “And now on July 18, 1914, within thirty (30) days from the adjournment of the Court and within thirty (30) days from the date of the verdict and of the direction given by the court and of the judgment entered thereon, comes the plaintiff and excepts to the said verdict and to the judgment and to the said direction of a verdict by the court in favor of the defendant, and assigns the same and each of them as error, and presents this its bill of exceptions and prays that the same may be signed and certified in accordance with law, that the errors herein alleged may be considered and corrected.” The defendant in error moved to dismiss the bill of exceptions on the ground that there is contained therein no sufficient assignment of error to confer upon this court jurisdiction to entertain the appeal. There is no merit in this motion, — 718 — since it appears that there is a distinct assignment of error made upon the direction of the verdict complained of. In the case of Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338-339 (66 S. E. 979), this court held that it was not authorized to consider the question of the right of the trial judge to direct a verdict under the evidence on the general grounds of a motion for a new trial, and without any specific assignment of error as to the direction of the verdict; and the Supreme Court held in the case of Dickenson v. Stults, 120 Ga. 632 (48 S. E. 173), that it has no authority to decide whether the trial court erred in directing a verdict, "when there is no assignment of error made upon such direction.” In the case of Joiner v. Stovall, 12 Ga. App. 19 (76 S. E. 753), it appears that the judgment was rendered by the court without the intervention of a jury, and the bill of exceptions set forth at length all the evidence and all the proceedings in the trial of the case, and concluded with the general statement that the judgment so rendered by the court was excepted to by the defendant, who "now assigns the same as error.” This court said: “It nowhere appears in the bill of exceptions whether this general exception was one of law or fact,” and hence it was held that the assignment of error presented no exception which this court could lawfully consider, and the motion to dismiss the writ of error was sustained on that ground. In the present case there was no conflict in the evidence whatever, and the only issue presented for determination by the court below was altogether one of law. Hence an assignment of error which complains of the direction of a verdict by the court in favor of the defendant, and further complains that such direction was error, presents for our consideration a question of law, which may be determined by an examination of the evidence which the trial court adjudged demanded a verdict in behalf of the defendant. See also Patterson v. Beck, 133 Ga. 701-707 (66 S. E. 911); Andrews v. John Church Company, 1 Ga. App. 560-561 (58 S. E. 130); Mason v. Terrell, 3 Ga. App. 348 (5), 355 (60 S. E. 4); Penn & Watson v. McGhee, 6 Ga. App. 631-633 (65 S. E. 686); Fincher & Womble v. Hanson, 12 Ga. App. 608-611 (77 S. E. 1068). See especially Duggan v. Monk, 5 Ga. App. 206 (62 S. E. 1017); Meeks v. Meeks, 5 Ga. App. 394 (63 S. E. 270); Howell v. Pennington, 118 Ga. 494 (45 S. E. 272); Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047); Patterson v. Beck, supra. — 719 — 2. On the morning oí March 4, 1913, the Sávannah Trust Company, the plaintiff, delivered to Tinsley & Hull certain cotton receipts for 470 bales of “sea island” cotton and 31 bales of “staple” cotton, pledged to that bank as security and so described in the notes, one of which is set out in full in the foregoing statement of facts. These cotton receipts were negotiable warehouse receipts in the usual form, issued to Tinsley & Hull by sundry Savannah warehousemen, and indorsed in blank by Tinsley & Hull. When the receipts were surrendered to Tinsley & Hull by the Savannah Trust Company, Tinsley & Hull gave therefor certain receipts, known in Savannah as “pink tickets,” a copy of one of which appears in the statement of facts. On the same morning, Tinsley & Hull obtained from the National Bank of Savannah, the defendant, similar warehouse receipts, issued to Tinsley & Hull by various warehousemen in Savannah, covering 560 bales of “upland cotton,” and gave to that bank two like “pink tickets” therefor. At that time Tinsley & Hull were in good credit, and, so far as either the bank or the general public was aware, there was no reason why their solvency should be questioned. On the afternoon of the same day, Tinsley & Hull sent by messenger to the National Bank of Savannah the warehouse receipts for the 501 bales of cotton obtained that morning on “pink tickets” from the Savannah Trust Company, and warehouse receipts for 59 bales of cotton in addition thereto, making a total of 560 bales in all, or the exact number of bales received by them that day from the National Bank of Savannah; and these receipts were accepted, without question, by one of the officers of the National Bank of Savannah in lieu of or by way of substitution for the 560 bales represented by the warehouse receipts delivered by it to Tinsley & Hull in the morning of the same day. This officer testified that since it was provided in , the two promissory notes of Tinsley & Hull, payable to the National Bank of Savannah and aggregating $28,000, which were secured by a pledge of 560 bales of cotton to that bank, that other cotton of equal value, with receipts therefor, might be exchanged for the cotton pledged as security for the notes, or for any portion thereof with the consent of the payee, he accepted warehouse receipts for “sea island” cotton in lieu of “upland” cotton, the “sea island” cotton being not only of equal but of- greater value than the “upland” cotton delivered in the morning. The evidence discloses — 720 — that at the time of this substitution the “pink tickets” which represented the 560 bales of “upland” cotton were neither called for by the messenger or agent of Tinsley & Hull, nor surrendered or delivered up by the National Bank of Savannah. Nevertheless, the evidence is clear that the 560 bales of cotton tendered by warehouse receipts that afternoon were accepted in substitution for those represented by the “pink tickets;” and by the acceptance of these 560 bales, including the 501 bales sued for, the defendant parted with a thing of value, to wit, all its rights under and by virtue of the trust receipts or “pink tickets,” in cancellation of which the 560 bales were tendered and accepted. The learned trial judge gave as his conclusion that, as a matter of law, there was, on the part of the National Bank of Savannah, a yielding up of the rights depending upon or growing out of the “pink tickets” or trust receipts, in exchange for the warehouse receipts for the 560 bales of cotton delivered to the National Bank of Savannah on the afternoon of March 4, 1913; and this court is of the opinion that his conclusion is correct. It is well settled that the pledgee of a collateral note is a holder for value, and if the creditor, at the time of receiving the collateral note, parts with anything of value, either money, property, or other securities, upon the faith of the note, he thereby becomes a holder for value; and in this case the surrender of collateral securities previously given, as indicated by the acceptance of other securities in the shape of warehouse receipts of like character, furnished a sufficient consideration to support the assignment or transfer of the warehouse receipts given in substitution. There is no contention supported by any evidence in the record that the National Bank of Savannah had any knowledge whatever that 501 of the 560 bales of cotton delivered to it by Tinsley & Hull on the afternoon of March 4, 1913, was cotton "which had been previously obtained on “pink tickets” or trust receipts by Tinsley & Hull from the Savannah Trust Company. The “pink tickets” set out that the warehouse receipts therein referred to were obtained from the Savannah Trust Company for the purpose of having the property therein described “rehandled.” Exactly what might be included by the term “rehandle” is not indicated by anything appearing in the contract itself, but in a broad sense the word might include much- more than merely remarking or rehandling, or — 721 — otherwise putting in better physical shape, the bales of cotton covered by the warehouse receipts. That the purpose of the “pink tickets” was to invest Tinsley & Hull with greater power than merely the right to transfer the cotton or some of it from one warehouse to another, or to have it rebaled or remarked, or to do anything to change the physical appearance or location of the cotton, is indicated by the further recitals in the “pink tickets” that the property described in the warehouse receipts was to be delivered (on sale or shipment) by Tinsley & Hull as agents of the Savannah Trust Company, by one o’clock in the afternoon of the following day, “and the proceeds thereof are to be paid at once to said bank, or if the property is not disposed of as aforesaid and the proceeds paid to said bank within the time named,” then and in that event (that is, in case a sale of the property or a conversion of the property into money is not effected by Tinsley & Hull as agents for the bank before one o’clock on the following day) the “receipts are to be returned to said bank within that time” — that is, by one o’clock p. m. on the day after the “pink tickets” were signed.- It may be mentioned just here, as disclosed by the record, that the “pink tickets” delivered by Tinsley & Hull to the National Bank of Savannah provided by their terms that the warehouse receipts or their proceeds should.be delivered by 6 o’clock p. m. on the day of the execution of the same — i. e., by 6 o’clock p.m. on March 4, 1913. It will be observed that the “pink tickets” delivered to the Savannah Trust Company (as well as those delivered to the National Bank of Savannah) clearly recognized that the cotton described in the warehouse receipts was placed in the hands of Tinsley & Hull as agents for the bank, but, as already suggested, when Tinsley & Hull tendered the warehouse receipts received from the Savannah Trust Company to the National Bank of Savannah, so far as the record discloses, there was absolutely nothing whatever to -put the National Bank of Savannah on notice that Tinsley & Hull were acting as agents for the Savannah Trust Company, or were dealing with property belonging to that corporation. In other words, the agency for the Savannah Trust Company was concealed, and the National Bank of Savannah, dealing with Tinsley & Hull, would be authorized to set up any defense against the Savannah Trust Company which it could have set up against Tinsley & Hull. Civil Code, § 3604. Clearly Tinsley & Hull could not — 722 — themselves recover the 501 bales of. cotton delivered to the National Bank of Savannah; and if they could not sustain an action for this cotton, neither could their concealed principal sustain it as against the National Bank of Savannah. Becurring for a moment to a feature of the case considered above, it is clear to us that by the acceptance of the 560 bales of cotton turned over to the National Bank of Savannah in substitution for Tinsley & Hull, it parted with the indicia of ownership to the property therein described, and when its agents, Tinsley & Hull, in possession by their consent of the said indicia of ownership, conveyed the 560 bales for which Tinsley & Hull had previously given to that bank “pink tickets” or trust receipts, the National Bank of Savannah put it absolutely out of its power to demand from Tinsley & Hull an accounting on the “pink tickets,” and relieved Tinsley & Hull from all responsibility thereunder. When the Savannah Trust Company parted with the warehouse receipts delivered to the same in pledge by way of substitution for other securities, and the National Bank of Savannah accepted the warehouse receipts obtained from the Savannah Trust Company by Tinsley & Hull, the pledgee got equally as good title thereto as if there had been an absolute sale for cash by the agents of the Savannah Trust Company to the National Bank of Savannah. For the purposes of this case, it is. immaterial whether Tinsley & Hull conveyed the property to the National Bank of Savannah as security for a pre-existing debt due that bank by them, or whether they sold the property absolutely for cash. It is well settled that an innocent pledgee of a warehouse receipt takes title superior to the lien of a vendor who permits the receipt to pass into the hands of the vendee in such a way affto enable the vendee to pledge it. See, in this connection, Jones on Collateral Securities, § 360. . The record discloses that on the day following the delivery of the 560 bales of cotton by Tinsley & Hull to the National Bank of Savannah Tinsley & Hull became insolvent, so that (so far as appears from the record) the retention by the National Bank of Savannah of the 501 bales of cotton sued for by the Savannah Trust Company will result in a loss of at least a portion of the debt due by Tinsley & Hull to the Savannah Trust' Company, which was thereby secured; but this, so far as appears from the record, is — 723 — merely a piece of good fortune on the part of the National Bank of Savannah, and of ill fortune on the part of the Savannah Trust Company, or, in other words, is seemingly chargeable to a business accident or to “the fortunes of war,” since there is nothing to indicate any special reason why Tinsley & Hull should have desired to protect the National Bank of Savannah at the expense of the Savannah Trust Company, or vice versa. Tinsley & Hull perhaps desired and intended to replace the cotton received from the two banks, in accordance with the terms of the “pink tickets,” and did return the cotton received from the National Bank of Savannah on the afternoon of the same day, because the time for its return, under the terms of the “pink tickets” given that bank, expired at 6 p. m. on that day, whereas they had until 1 p. m. on the following day to return the cotton received from the Savannah Trust Company, or cotton of like grade, and may only have been prevented from doing so by their failure on March 5, before the expiration of the time limit. The “pink tickets” or receipts signed by Tinsley & Hull before receiving the warehouse receipts for the 501 bales of cotton from the Savannah Trust Company not only recited that Tinsley & Hull desired to “rehandle” this cotton, but expressly recognized Tinsley & Hull as -agents for the Savannah Trust Company, and, while declaring that the title to the property was in the Savannah Trust Company, distinctly provided that it was to be delivered on sale or for shipment by one o’clock p. m. of the following day, the proceeds thereof to be paid at once to that bank, “or if said property is not disposed of as aforesaid and the proceeds paid to said bank within the time named, said receipts are to be returned to said bank within that time.” It is very clear to us that under the express terms of the “pink tickets,” Tinsley & Hull were empowered to dispose of the property as agents for the Savannah Trust Company, and, if they violated the trust reposed in them, and after disposing of the property failed or refused to turn over the proceeds thereof to the principal, this could not invalidate the title of .one who, bona fide and in exchange for something of value, obtained the property from them with no knowledge that they were simply agents for the Savannah Trust Company and did not in fact themselves possess the absolute title to the property, and the right to dispose of it without accounting to any one for the proceeds. — 724 — As already stated, the National Bank of Savannah, when it accepted the cotton delivered to it on the afternoon of March 4, 1913 (including the 501 bales obtained by Tinsley So Hull from the Savannah Trust Company in substitution for a like number of bales for which the National Bank of Savannah held trust receipts from Tinsley So Hull), unquestionably put it beyond its power to insist thereafter upon the performance of the conditions embodied in the receipts previously given to it by Tinsley & Hull, or to require from Tinsley So Hull a compliance with the terms of those receipts; and this right so parted with was also unquestionably a thing of value, since, notwithstanding the insolvency of Tinsley & Hull, which appeared on the following day, the trust receipts, in effect canceled by the acceptance of the cotton substituted by Tinsley So Hull on the afternoon of March 4 for that received from the National Bank of Savannah in the morning of the same day, would have not only constituted a special claim against the estate of the insolvent debtors, which might be of some financial value, but also gave to the National Bank of Savannah a personal hold on one, if not both, of the members of the firm of Tinsley So Hull, on account of the breach of the trust reposed in that firm, which might have enabled the bank to realize the total indebtedness, or some further portion of the amount due it by Tinsley , & Hull. 3. Suffice it to say, this, it appears to us, is conclusive of the ■issues raised in this case: that the Savannah Trust Company placed it in the power of Tinsley So Hull to sell or pledge or otherwise dispose of the warehouse receipts delivered to them .on “pink tickets,” and they did in fact dispose of these receipts to the National Bank of Savannah, which received the same bona fide and without notice or knowledge that Tinsley & Hull were handling the property in question merely as agents for the Savannah Trust Company; and since, “when one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss” (Civil Code, § 4537), the loss in this case must fall upon the plaintiff, the Savannah Trust Company, and the court below properly held that under the evidence the only legal verdict that could have been rendered was a verdict in favor of the defendant. Judgment affirmed.