Merchants' & Planters' National Bank v. Trustees of the Masonic Hall

Jackson, Justice.

1. This was an action brought to recover certain bonds which were hypothecated to the bank by John D. Butt, to secure certain debts which he owed there in partnership with others. He was treasurer of the Masonic hall, and a director of the bank ; the bonds belonged to the hall, and the case turned, in respect to the controlling question, on the point whether the bank had notice that the title was in the Masonic Hall, and not in Butt, when it took the bonds from him as collateral security for his debt. If it did not have notice, it was protected; if it did have notice, it was not protected, and the true owner was entitled to recover. On this point the testimony was conflicting; the jury passed upon it; the presiding judge who heard the witnesses and tried the case, overruled the motion for a new trial, and the sole question for us is, did he abuse the discretion with which the law invests him ? The credibility of witnesses is peculiarly matter for the jury, and, in review, the presiding judge has better opportunities of passing properly upon their finding than the appellate court. His is the discretion on which the statute places the decision of the rights of the party for a new hearing, and only when it is abused, as repeatedly ruled by this court, ought the appellate court to interfere. The cases are too numerous on this point to cite them.

We cannot say that the discretion of the judge has been so abused in the present case as to require us to set aside the verdict and order a new trial, over his head and in the teeth of his judgment. Whether this court, had it been in the jury-box, would have found the verdict, or, had it been on the circuit bench, would have sustained it, is not the question ; but the question is, did the judge who tried the case abuse the discretion the law confides to him in sustaining the verdict when the credibility of witnesses and conflict of testimony had to be passed upon by the jury? So considering the question made before us, we do not feel at liberty to interfere on the ground in the motion, that the verdict is decidedly against the weight of the evidence.

2. It is objected that .the verdict is excessive. This objection seems to be based on the idea that the jury estimated the damage of the plaintiffs to be the value of the bonds and of the mature coupons at the time of the demand, with interest on such aggregate value from the demand. We are unable to see the error of this estimate. The Masonic Hall, when the bonds and coupons which had matured were converted, was certainly damaged that much. Indeed, it was held in 35 Ga., 40, that interest on annual hire of property was recoverable as part of the damage to the true owner of the property wrongfully converted; and in 57 Ga., 418, it was held, that on stock wrongfully converted, not only dividends, but interest on the dividends, were recoverable as damage to the owner. Under these decisions, the recovery in the case at bar might have been larger.

3. It is again objected, that-the court charged to the effect that, though the bank, when it first took these bonds from-Butt, may not have had notice, yet if the debt for which they first were hypothecated was paid, and they were hypothecated for another debt of other firms, of which Butt became a member, and the bank got notice before the second hypothecation, then its title would not be good. We do not see' the error of this charge. There was evidence going to show that Butt changed his firm relations — was at one time a member of one and then of a different firm, by adding or subtracting a partner — during the time that the bonds were in the bank, and that the coupons were collected by him and credited on the bank books to the Masonic Hall — he being allowed to take out the bonds for that purpose. Such being the evidence, it may be that notice was conveyed to the bank between these changes of firms, and the making of new notes with new parties, and not the renewal of old ones; or that their own books showed circumstances which amounted to constructive notice of the title of the Masonic Hall, after such novation.

So, too, we think there was no error in the refusal to charge on the subject of subsequently acquired notice — that is, that the bank, having once got good title, held it, notwithstanding future notice by deposit of coupons or otherwise. It depends, where the court put it, upon the question whether the debt for which they were hypothecated had been paid, and a new debt by a new firm had been created, before such notice, or circumstances from which notice could have been inferred.

4. The general rule in regard to the doctrine of the bona, fides or malo fides of the bank in receiving the securities as laid down by the court, and the onus upon the respective parties, is substantially that given by this court in the case of Mathews vs. Poythress, 4 Ga., 287. The summing up' of the principles extracted from the authorities after a careful and elaborate review of them by Judge Nisbet, is to be found in the report of that case on the 805th page of 4th Ga., and is as follows:

“ ITe who buys a promissory note, bill of exchange, or any other security negotiable by delivery, before it is due, acquires a title to such security and a property in it by virtue of his possession.

“But if such security be proven to have been lost or stolen, or in any other way appropriated in fraud of the rights of the owner, then such purchaser does not acquire a title to it until he proves that he took it tona fide and for value.

“And in that event — that is, when the purchaser has proven that he took the security tona fide and for value— his title may be defeated by proof on the part of the defendant in the action, where suit is brought upon the note or bill, or of the plaintiff, when the suit is brought for the note or bill, that he took it malafideP

The law laid down by Judge Bottle in this case, in his charge to the jury, does not vary materially from this summary.

5. The instructions in regard to the imputation of perjury, and the impeachment of witnesses, etc., etc., as explained by the court in overruling the motion for a new trial, are law as far as they go, and if the defendant desired further instructions as to modes of impeachment, it was its duty to ask for them.

6. Error is also assigned upon the charge that the holder of the collaterals could retain them only so long as his debt was unpaid. This objection seems based on the ground that there_ was no evidence to support the charge. It seems, however, that there was a long account between the bank and Butt, running through several years, embracing many notes, some paid and others renewed ,• that the firm of which Butt was a member changed partners once or twice ; that the new as well as the old firm borrowed money through Butt from this bank; that Butt took out the bonds from time to time and collected the coupons and deposited them to the credit of the true owner of the bonds on the books of the bank, tending to show notice, and thus that there was evidence from which the jury might conclude that though the original hypothecation gave title to secure the first debt, yet, ■when that was paid, circumstances charged the bank with notice, and it could not longer retain the bonds to secure other debts after notice. At ail events, there is evidence on which the charge may rest; and of the principle of law announced there can be no doubt.

7. On a careful review of the case, we are unable to see any material error of law requiring us to send it back for a new trial; and on the main issue, the weight of the evidence and the credibility of the witnesses, 'the jury and the presiding judge have passed more satisfactorily than we can do from the.light of this record, unaided by the appearance and manner of the witnesses, and knowledge of character gathered from the vicinage. ¥e consider, therefore, that the law gives us no power in such a case to interfere, and that we have no alternative but to hold that the discretion of the court below has not been abused, and to affirm the judgment.

Judgment affirmed.