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SMITH ROOFING AND CONTRACTING COMPANY V.

MITCHELL.

(117 Ga. 772, 45 8. E. 47.) BANKING-Payment by Charging Amount of Check to Drawer's Account.-If the payee in a check deposits it for collection in a bank, which forwards it to the drawee bank for payment, an entry on its books by the latter bank charging the amount of the check to the drawee's account discharges him from liability on the debt for which the check was given, notwithstanding the drawee bank withholds the money from the collecting bank and fails to enter the proper credit to its account. (p. 219.)

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C. J. Lester, for the plaintiff. 772 CANDLER, J. Mitchell gave to the 0. A. Smith Roofing and Contracting Company a check on the Barnesville Savings Bank, for the amount of a debt due by him to it. This check was dated November 21, 1901, and was on that day deposited by the company with the Third National Bank of Atlanta. The Atlanta bank immediately forwarded the check to the bank in Barnesville, where, on November 22d, it was received and marked paid, and the amount of the check charged to the account of the drawer, who had sufficient funds on deposit in the bank to meet the check. Subsequently the canceled check was turned over to Mitchell. On December 4, 1901, an officer of the Barnesville Savings Bank called upon Mitchell and asked him for the check, without stating what he wanted with it. Mitchell gave it to him; whereupon the check was by the Barnesville bank protested for nonpayment, 773 returned to the Third National Bank of Atlanta, and by that bank returned to the 0. A. Smith Roofing and Contracting Company, to whose order it had been drawn. On December 4, 1901, the day when it returned the check to Atlanta, the Barnesville bank failed and went into the hands of a receiver. The 0. A. Smith Roofing and Contracting Company, having complied with all the requirements of the law, brought suit to foreclose its materialman's lien for the debt to pay which the check was given. The defendant pleaded payment. The case was tried by the court, without a jury, on an agreed statement of facts, the substance of which has been given; and judgment was rendered for the defendant, whereupon the plaintiff excepted.

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gamming cond, made the application: 2 Morse pied Parking, 3d ed., soc. 451. And so, in this in the end that it fraudulently withheld the money from

the failed to enter the proper credit to its account amalga ung lese complete the payment by the depositor. 17 in the hands of the agents of the payee of

bewer is completely discharged from any au a the debt for which it was given as if he had

alit had paid the money over its counter to

ziz tez toute lank suspended payment and

meter, vithert having forwarded the an die bank in Augusta. Suit was brought una ch by the holder of the check, who had porn, and the trial in the lower court reof te dielent

. The judgment was reversed
san fhis court, where it was held that the Au.
22 in the absence of any express or implied

E, Wule for any neglect of duty whereby
na ang ek was defeated, whether such neglect
dicite on oikers or from that of its cor-

de u stam it may have sent the check for colo
za nase it would be immaterial whether such
cual me the bank upon which the check was
En e do not, of course, lose sight of the fact
in the nurse of the check against the bank

As will have been gathered from the foregoing, the sole ques. tion for our determination is whether the giving of the check by the defendant, the presentation of that check at the bank upon which it was drawn, and the action of the bank in charging the amount of the check to the defendant's account and returning the canceled check to him, constituted such a payment by the defendant of his debt to the plaintiff as will discharge him from liability to it. When the 0. A. Smith Roofing and Contracting Company deposited the check for collection with the Third National Bank of Atlanta, it made that bank its agent for the purpose of collecting the check. The Third National Bank, in its turn, made the Barnesville Savings Bank its agent for the same purpose. It is not denied that Mitchell had ample funds in the Barnesville bank to meet the check. The check was canceled Mitchell's account was duly charged, and the paper turned over to him. When that was done, Mitchell no longer owed the debt for which his check had been given, for the check had been paid; and the next step in the proper course of the proceedings would have been for the Barnesville bank to send the money called for by the check to the Third National Bank of Atlanta. It is contended, however, that the defendant, by returning to the officer of the Barnesville bank the canceled check which had been returned to him, placed it in the power of that bank to commit a fraud, and that therefore he should be held liable for the amount of the check. We cannot see the force of this reasoning. The fraud committed by the Barnesville Savings Bank was the failure to remit to the Third National Bank of Atlanta the amount of the check. The return of the check to the Atlan'a bank marked 774 both “paid” and “protested for nonpayment' was not the fraud-it was simply an attempt on the part of the Barnesville bank to conceal the wrong that it had done. The possession by Mitchell of the canceled check was merely a receipt-an evidence of payment. It is admitted that Mitchell had a right to the possession of the check; and it would seem to follow as a logical conclusion that the fact that the check had been paid is also admitted.

A case very closely in point is Bailie v. Augusta Sav. Bank, 95 Ga. 277, 51 Am. St. Rep. 74, 21 S. E. 717. There a check on a bank in Wilmington, North Carolina, was deposited for collection in a bank in Augusta. The check was forwarded promptly to the bank on which it was drawn, and the amount charged to the account of the drawer on the books of that bank.

sa se deposited for collection, while this is a suit 224 be drawer of the check. The facts of that men fimilar to those of the case at bar;

and an'at doen is directly applicable as indicating in the present case rests: See, also, Comer

. St. Reg. 89,22 S. E. 543; die Back, 45 N. Y. 135, 6 Am. Prop. 169. “A

in terselamat to, and will be treated as, a parment of

2 hours and then immediately paid back again
at the ve for which the credit is given. This

sikere the bank held the check for several
spaluch the drawer's account was not good, and

be sei di the Barestille Savings Bank, charg

and ita depositor with the amount of the check,

case,

the bank which had sent the check for collec

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A few days thereafter, the drawee bank suspended payment and went into the hands of a receiver, without having forwarded the amount of the check to the bank in Augusta. Suit was brought against the Augusta bank by the holder of the check, who had deposited it for collection, and the trial in the lower court resulted in favor of the defendant. The judgment was reversed on writ of error to this court, where it was held that the Augusta bank "became, in the absence of any express or implied contract to the contrary, liable for any neglect of duty whereby the collection of the check was defeated, whether such neglect arose from the default of its own officers or from that of its correspondent or agent to whom it may have sent the check for collection, and in such case it would be immaterial whether such correspondent or agent was the bank upon which the check was drawn or another.” We do not, of course, lose sight of the fact that that was a suit by the indorsee of the check against the bank with which it had been deposited for collection, while this is a suit by the payee against the drawer of the check. The facts of that case, however, are very similar to those of the case at bar; and the principle there laid down is directly applicable as indicating where the liability in the present case rests: See, also, Comer F. Dufour, 95 Ga. 376, 51 Am. St. Rep. 89, 22 S. E. 543; Oddie 1. National City Bank, 45 N. Y. 735, 6 Am. Rep. 160. "A credit given for the amount of a check by the bank upon which it is drawn is equivalent to, and will be treated as, a payment of the check. It is the same as if the money had been paid over the counter on the check, and then immediately paid back again to the account or for the use for which the credit is given. This rule has been applied where the bank held the check for several 175 days, during which the drawer's account was not good, and then, the account becoming good, made the application : 2 Morse or Banks and Banking, 3d ed., sec. 451. And so, in this case, the entry on the books of the Barnesville Savings Bank, charging the account of its depositor with the amount of the check, was the same as if it had paid the money over its counter to itself as agent for the bank which had sent the check for collection; and the fact that it fraudulently withheld the money from that bank and failed to enter the proper credit to its account does not render any less complete the payment by the depositor. That money is now in the hands of the agents of the payee of the check, and the drawer is as completely discharged from any further liability on the debt for which it was given as if he had

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Sentetis warranty to his rendee, and so on

win Irekes , Nelson, 21 Ga. 463, Benning, J., Para onene of cases in which, in his opinion, the

ne postitust to the benefit of a warranty made to his antal property is sold, and there are defecto

aunt may sometimes arise against the one des

pe cing into circulation: Longmeid v. Holliday Di Compare Civil Code, sections 3864, 3865, a

Lexist. Terry, 111 Cal. 39, 52 Am. St. Rep.

, and unknown to the vendee, and a subse

a Monresa is not negotiable (Dukes v. Nelson, 27

paid the actual money to one authorized by his creditor to collect it.

Judgment affirmed.

sing the present suit; which mo

All the justices concur.

A8 Bearing the Principal Case, see Bailie v. Augusta Sav. Bank, 95 Ga. 277, 51 Am. St. Rep. 74, 21 S. E. 717; Oddie v. National City Bank, 45 N. Y. 735, 6 Am. Rep. 160.

od land is liable to his immediate a la mitad, for the purchase money with inan rond by bim in defending the title; Carand in a series of suits for breach of

porn holding under but not immedia-ly
can bare been successive sales with succes-

laga erising from an outstanding title
at the sale by the common grantor, it is
pate site be brought by each grantee, and
ini dan are to be carried forward, and finally
Sa Tutetor, these items, as here, may finally
heyrante as the liability for the purchase
cena sente transaction. Each vendor is
2 tatract

, and to the extent thereof. 784 But
soka pri mendor's obligation berond that fixed

2 dl damages is the purchase money with - ty incurred bf the vendet in at

SMITH v. WILLIAMS.

[117 Ga. 782, 45 S. E, 394.] SALE-Breach of Warranty of Title.-The Measure of Damages on a breach of warranty of title to personal property, is the purchase money, with interest, and expenses properlv incurred by the vendee in attempting to defend his title. (p. 221.)

SALE.-A Warranty of Title in a sale of personal property is pot negotiable, and does not run with the article sold. (p. 222.)

SALE—Breach of Warranty of Title.The Measure of Damages against the original warrantor of the title to personal property cannot be increased l y reason of liabilities subsequently incurred by his vendee on account of independent warranties of the same property to later purchasers. (p. 222.)

SALE-Breach of Warranty of Title.-Attorney's Fees cannot be recovered by a vendee in a suit for a breach of warranty of title, where there is no allegation that the vendor was guilty of fraud or bad faith when he made the sale. (p. 222.)

and his title, but not for expenses incurred by
zending rights warranted by their imme-

za urh they be also derived by a chain of
son partantor. Such a rule would make Smith

el in expenses incurred under his war-
i itt for those under Tilliams' warranty to

Greene F. Johnson, for the plaintiff in error.

2. Tilse insteased elements of damage could not 12 de sale of land, here the benefit of the waraga to sue thereon passes to each successive ven

9612, 3864. For a much stronger reason sale of personal property with warranty,

George & Anderson, for the defendant in error.

783 LAMAR, J. In 1900 Smith sold personal property to Williams with warranty; Williams sold to Newton with warranty; Harris on a title outstanding in 1896 recovered the property from Newton, who thereupon sued Williams on breach of warranty, claiming and recovering as damages the purchase money, attorney's fees and costs expended by Newton in defending against Harris' title, and attorney's fees for bringing the suit against Williams. Smith had notice of this suit, but failed to defend when requested so to do by Williams. Thereupon the latter sued Smith for the breach of warranty, claiming as damages all of the items recovered by Newton, and also attorney's fees for bringing the present action. Smith moved to strike all claims for costs and attorney's fees in the previous suits, and also the

page is injured by reason thereof

, an action for dam

one provisions and adulteratal drugs. But a

attorney's fees claimed for bringing the present suit; which motion being overruled, he excepted.

Of course, the grantor of land is liable to his immediate grantee, who has been evicted, for the purchase money with in. terest, and expenses incurred by him in defending the title;

but not for expenses incurred in a series of suits for breach of 1 warranty by remote grantees holding under but not immediately

from him. Where there have been successive sales with successive warranties, and a breach arising from an outstanding title existing at the time of the sale by the common grantor, it is evident that if separate suits be brought by each grantee, and the costs and attorney's fees are to be carried forward, and finally paid by the original warrantor, these items, as here, may finally become of as much importance as the liability for the purchase money. Each sale is a separate transaction. Each vendor is liable for his own contract, and to the extent thereof. 784 But he cannot enlarge his prior vendor's obligation beyond that fixed by law. The measure of damages is the purchase money with interest and expenses properly incurred by the vendee in attempting to defend his title; but not for expenses incurred by cthers in asserting or defending rights warranted by their immediate vendor, even though they be also derived by a chain of title from the remote warrantor. Such a rule would make Smith liable to Williams not only for expenses incurred under his warranty to Williams, but for those under Williams' warranty to Newton, and under Newton's warranty to his vendee, and so on ad infinitum. These increased elements of damage could not be collected even on a sale of land, here the benefit of the warranty and the right to sue thereon passes to each successive vendee: Civ. Code, secs. 3612, 3864. For a much stronger reason it would not apply to a sale of personal property with warranty. It is true that in Dukes v. Nelson, 27 Ga. 463, Benning, J., said that he could conceive of cases in which, in his opinion, the vendee would be entitled to the benefit of a warranty made to his vendor. Where personal property is sold, and there are defects latent and concealed, and unknown to the vendee, and a subsequent purchaser is injured by reason thereof, an action for damages sounding in tort may sometimes arise against the one nego ligently putting the thing into circulation: Longmeid y. Holliday 20 L. J. Ex. 430; Lewis v. Terry, 111 Cal. 39, 52 Am. St, Rep. 146, 43 Pac. 398. Compare Civil Code, sections 3864, 3865, as to sale of unwholesome provisions and adulterated drugs. But a Warranty of soundness is not negotiable (Dukes v. Nelson, 27

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