Wilson v. Small

Jenkins, P. J. 1. This is the third appearance here of this ease. See Small v. Wilson, 20 Ga. App. 674 (93 S. E. 518); Wilson v. Small, 25 Ga. App. 19 (102 S. E. 370). On the last (the fourth) trial in the court below, a verdict was rendered-for the plaintiff. Save as to some of the exceptions now taken by the defendant to the admission of testimony and to the charge of the court, the questions now presented appear to have been passed upon and fully determined by this court when the case was first reviewed on exceptions taken by the plaintiff to the award of a nonsuit. It was then held that the amendment to the petition setting forth the identity of the certificate of stock sued for, as finally changed [588] to “ Certificate No. 172,” was properly allowed. The defendant’s objection that there had been no valid pledge of the certificate to the plaintiif was then ruled on; and the contentions that there had been no demand and conversion of the particular certificate sued for, and that trover could not lie against the defendant as the true owner of the certificate, were then dealt with. The rulings made when these questions were raised on the first appeal and this court held that the trial court erred in granting a nonsuit became the law of the case. Under the petition as amended and the law of the case as previously adjudicated, the evidence for the plaintiff on the last trial authorized the verdict rendered in his favor. 2. The exceptions taken to the admission of the plaintiff’s testimony relative to the pledge of the stock-certificate, and to his evidence in explanation of the contents of his letter to defendant, on the ground that such testimony constituted mere expressions of opinion, are without merit, and are foreclosed by the former rulings of this court holding that this testimony of the plaintiff, relative to the pledge of the stock, proved his case as alleged, and that the plaintiff’s testimony relative to and in explanation of the admission contained in his letter raised an issue for the jury. 3. The exceptions taken to the alleged inaccuracy of the charge in referring to the plaintiff’s contention relative to the pledge of the stock, as having been made to secure a loan by the plaintiff to defendant in the sum of $6,250, whereas the contention was that the pledge was made to secure the defendant’s interest in a loan of $12,500, made by the plaintiff as administrator, on a joint note signed both by him as an individual, and by the defendant, do not show any such material misstatement of the plaintiff’s contention as could confuse the jury to the injury of the defendant’s rights. The real dispute was whether or not the defendant had agreed that the stock certificate should be sent to the plaintiff, and be held by him to secure the debt to him as administrator. That it was in fact sent to and received by. him appears indisputably true. If it were possible for such an inaccuracy in the charge to militate against the rights of either partj’-, it was the plaintiff, and not the defendant, who might theoretically have been prejudiced. Nor would this court feel justified in setting aside the verdict because the judge may in this connection have referred to the [589] certificate by its subsequent number, there being no possibility that the jury could have been misled as to the identity of the certificate representing the stock involved, despite the various changes made in its number pending the course of the transactions. 4. The judge charged the jury fully and fairly upon the burden of proof and the preponderance of evidence. 5. According to the plaintiff’s contention, the certificate of stock sued for had been pledged to him as administrator to secure defendant’s debt to him as srich, and, after such pledge, the plaintiff had loaned the certificate back to the defendant- to be used as collateral security for another debt owing by defendant to the Citizens National Bank, on which the former as an individual was indorser, but with the understanding that the certificate would be returned to the plaintiff as soon as the debt to this bank should be discharged; and that after this bank debt had been paid off and extinguished, the defendant, on demand, had refused to surrender back the certificate to the plaintiff. The defendant claims that rhe obligation due the Citizens National Bank had not terminated at the time the alleged demand for the certificate was made, and that consequently no wrongful act or conversion on his part has been shown. This contention is based on the theory that, since the defendant used the stock in obtaining a loan from another bank, with the proceeds of which the Citizens Bank debt was paid, such procedure amounted merely to a transfer of the claim with its security by the Citizens National Bank to the other bank. We decide, that, since the obligation to the Citizens National Bank was in fact fully paid off and extinguished, and since, according to the plaintiff’s evidence, he did not consent that the certificate, which he had loaned for the purpose of being pledged at that bank, should be used in securing a new and distinct obligation to a new and different party, but since, according to his evidence, he- demanded the return of the certificate after the purpose for which it was loaned had been served, to wit, the securing of the specific debt owing to the Citizens National Bank, on which he as an individual was indorser, this contention must be held to be without merit, and the trial judge did not err in so treating it. Indeed, this question too seems to have been adjudicated by the rulings made in the former decision, since it then appeared that the defendant had made use of the stock certificate in obtaining the loan from [590] the other bank with which to discharge the debt due at the Citizens National Bank, but, notwithstanding such fact, it was then held that the plaintiff’s case had been proved as laid. 6. The remaining grounds of the motion for new trial are without merit, and are each controlled adversely to movant by the effect of the rulings made by this court in the former adjudications. Judgment affirmed. Stephens and Hill, JJ., concur.