Tedder v. Walker

Evans, P. J.

(After stating the foregoing facts.)

1. When the original library trustees accepted the donation to the City of Norcross, to be used for library purposes, they could not legally lend it to Mrs. Tedder and Mrs. Buchanan. The loan of the money to them was an ultra vires act; and the trustees, being bound to account for the money, had such interest therein as to authorize a recovery in an action brought in their own names. The loan being evidenced by a note payable to them, with the words following their names, “library trustees, their successors, or order,” they may sue on it in their own names; and if they sue and add to their names the words “library trustees,” such words may be treated as matter of description and rejected as surplusage. Oglesby v. Gilmore, 5 Ga. 56 (3); Zellner v. Cleveland, 69 Ga. 631, 633.

2. There was no error in overruling the motion of McDaniel and Lively, two of the library trustees, to dismiss the action as having been brought without their consent. The plaintiffs having a right of action on the note, and the note being the evidence of an ultra vires transaction, the successors in the trust of the plaintiffs could not defeat the plaintiffs’ action.

3. The defense urged against the payment of the note is that the municipality of Norcross had released the debt evidenced by the note in suit. It is averred that E. E. Buchanan donated to the City of Norcross $2,500 for library purposes, and that the donation was accepted by the library trustees appointed by the city. A municipality may maintain a library, and may appoint a board of trustees with authority to accept and receive donations in money or other property for the purpose of erecting library buildings and for maintaining a library. Civil Code (1910), § 1566 et seq. When the board of trustees accepted the donation it became public property. There is no allegation that the city had abandoned the enterprise of maintaining a public library, or that the money when collected would be diverted to other purposes than that for which it was donated. So that we do not have the question of the renunciation of a public trust, or the restoration of the gift because the purposes of the trust have failed. The municipality by ordinance undertook to relieve the makers from liability on the note. This, in effect, was a donation of that chose in action to the defendants. The money represented by that chose in action was public property, the property of the municipality; and it was without power to donate it to Mrs. Tedder and Mrs. Buchanan. City of Fitzgerald v. Witchard, 130 Ga. 552 (61 S. E. 227, 16 L. R. A. (N. S.) 519).

Judgment affirmed.

By five Justices, all concurring.