Hartford Mutual Insurance Company v. Barfield., 105 Ga. App. 266, 124 S.E.2d 294 (1962)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 39080

Parts: FRANKUM, Judge.

Linked as:

Summary

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.

Summary

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.

Text

R. E. Barfield, defendant in error (hereinafter referred to as the plaintiff), brought a suit against Harford Mutual Insurance Company, plaintiff in error (hereinafter referred to as defendant), on a draft, a copy of which is attached to the petition. The petition alleges that the defendant drew a draft payable to the order of the plaintiff and one Lewis M. Elkins and delivered the same to the plaintiff. The plaintiff alleges facts showing that he is the owner and holder of the draft; that it was endorsed in blank by Lewis M. Elkins; that he "deposited said draft in his bank account", and that "payment of said draft was thereafter stopped without notice to plaintiff." Held:

1. Code 14-602 provides, in part: "The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse; and engages that on due p-resentment the instrument will be accepted or paid, or both, according to its tenor, . . . he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it . . ." See also Jett v. Atlanta Fed. Sav. &c. Assn., 104 Ga. App. 688 (123 SE2d 27); Associates Discount Corp. v. Brantley, 102 Ga. App. 751 (117 SE2d 916). The plaintiff is a payee of the instrument and is a holder subject to any defense available to the drawer. Pendley v. Credit Equipment Corp., 92 Ga. App. 658 (89 SE2d 567). See Code 14-508. The petition sets forth sufficient facts to allege a cause of action under Code 14-501, which provides in part: "The holder of a negotiable instrument may sue thereon in his own name; . . ."

2. It is not necessary for the plaintiff to show notice of dishonor of the draft to- the drawer because the drawer and the drawee are the same legal entity, and the drawer countermanded payment. Code 14-826 (1, 5); Jett v. Atlanta Fed. Sav. &c. Assn., 104 Ga. App. 688, supra.

3. The court did not err in overruling defendant's general demurrer.

George A. Edmund, Archie L. Gleason, for plaintiff in error.