Davis v. Fulton National Bank

I concur in divisions 1 and 2 of the majority opinion, but dissent from division 3, as I am of the opinion that the verdict for the defendant bank was authorized by the evidence and that the judgment of the trial court should be affirmed. A teller in the Fulton National Bank, D. H. Symmers, testified, to the effect, that on the morning in question R. J. Davis came to the bank with two checks, one for $750, on the *Page 405 Citizens and Southern National Bank of Atlanta, and the other for $2075, on the Citizens and Southern Bank of Thomaston, Georgia. The check on the Citizens and Southern National Bank of Atlanta for $750 was made payable to R. J. Davis, and the $2075 check was made payable to Charles A. Brackett, endorsed Charles A. Brackett and endorsed R. J. Davis. "I had handled checks for Mr. Davis and Mr. Brackett on out-of-town banks for collection on Mr. Brackett's endorsement to be credited to Mr. Brackett's account. I told Mr. Davis that day, I said, Mr. Davis, I can cash this check on a local bank . . and give you the money . . this out-of-town check I can't cash but I can credit it to Brackett's account. You not having a bank account, I can send it off as a collection item and credit it to Mr. Brackett's account when the proceeds come back to us. He consented to it. I said, now, Mr. Davis, we will have to take your endorsement off of this check here so I can credit it to Mr. Brackett's account, which he did. Mr. Davis was present, standing right in front of the window. There was a young man, Thomas J. George, who works in the bank, standing in the back to ask me a question." T. J. George testified: "He brought the check up there and Doug [Symmers] told him that it was made payable to Brackett and it wasn't the regular routine but that he could take that check and send it out for collection in Brackett's name, take Davis' signature off of the endorsement . . and credit Brackett's account. And he said, that's O. K. and Doug scratched it right off where he could see it. Me and Doug Symmers and Mr. Davis are the only ones I can recall that would be in a radius to see what was going on." Davis denied that he consented for the check to be credited to the account of Brackett, or that he authorized anyone to remove his endorsement from the check. Although Davis originally denied that he had any previous transactions with the bank where he had deposited money to Brackett's account, when confronted with several checks he admitted that there probably were occasions when he had deposited money to Brackett's account. Davis also testified: "I have not been in any type of business with Mr. Brackett." Brackett testified that he and Davis had been in the automobile parts business together and had split the profits. This is *Page 406 pointed out to show the conflicts in the evidence in favor of the plaintiff and that offered by the defendant. The bank's witnesses stated that Davis gave his consent for the money to be deposited to Brackett's account. Davis denied this. The bank's witnesses showed previous transactions where Davis had actually deposited checks to Brackett's account, and Davis at first denied and then admitted that this was true. The issues were of fact, and the jury chose to disregard the evidence of Davis, and to believe that of the witnesses for the bank, which lead to the conclusion that the check was left at the bank for collection to be placed to the credit of Brackett, and in the absence of additional facts as to what transpired afterwards, the liability of the bank for the money is to Brackett, and the bank holds the money for Brackett, with the express approval of Davis. Although Brackett testified that the money due on the check was not his, he also testified that Davis had never asked him for the money, and if the jury believed that Davis deposited the check for collection and credit to Brackett, as previously discussed, Davis should look to Brackett, and not to the bank, for the money.