Clarke v. Woodward , 76 Ga. App. 181 ( 1947 )

1. The only way in which the maker of the check in this case was bound to an accommodation indorser was by reason of the fact that the offense of issuing a bad check or cheating and swindling was committed. I do not think that the doctrine of estoppel could be stretched so far as to make the defendant liable in this case. While he might have been held to have anticipated that third parties would extend credit on the faith of his being a partner in the legitimate course of business, I do not think he will be held in law to have anticipated that his associate would bind him by an illegal and immoral act.

2. "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him." Steele v. Central of Ga.Ry. Co., 123 Ga. 237 (51 S.E. 438); Western Atlantic R.Co. v. Evans, 96 Ga. 481 (23 S.E. 494); Sheppard v.Chappell, 29 Ga. App. 6 (113 S.E. 23); Southern Bank v.Goette, 108 Ga. 796 (33 S.E. 974); Long Cigar GroceryCo. v. Harvey, 33 Ga. App. 236 (125 S.E. 870). The plaintiff's own testimony, which was the only evidence on the subject, was so contradictory on the question of whether or not he relied upon this representation in endorsing the check that, when construed against him, there is no evidence to support a verdict in his favor, for the reason that "before one not in fact a partner will be estopped from denying his connection with the firm, it must appear not only that he, by admissions, conduct, or otherwise, held himself out as a partner, but also that the opposite party was misled by the putative status and acted thereon." Mims v. Brook Co., 3 Ga. App. 247 (2) (59 S.E. 711). On cross-examination the plaintiff, testifying in his own behalf, stated: "Mr. Moseley told me about Mr. Clarke (the defendant) before he gave me this check. There was something over $2000 in the bank then. The check I endorsed is the $1500 check. . . I say that at the time he showed me the passbook it had entered in it the sum of over $2000. I first met Moseley sometime prior to that date there, some few days before the check was cashed. . . It was probably 10 days before that. I don't know the date. . . You ask when I had occasion to investigate the credit of Mr. E. A. Clarke. Well, I looked into his account right after I signed this note — after (1) I signed the check. I didn't know before. . . You ask if the reason I endorsed the check wasthe fact that he (Moseley) showed me the passbook that he had adeposit of $2000 in the Bank of Toccoa and I had met him and he was in business there and was an outstanding citizen. I will sayyes." On redirect examination the plaintiff testified: "When I endorsed this check for $1500 for Mr. Moseley, I relied on the statement that Mr. Clarke was his partner or I would never have endorsed the check." Later he testified: "You ask if in my statement a minute ago that I relied on the bank book as the inducing cause of my endorsing the check, if that was the only reason I signed the check or whether it was because of the statement in regard to Mr. Clarke. Well, more or less onClarke's account, because he was the one he said had the money. I would not have endorsed the check for $1500 if it had not been represented to me that Clarke, a man of financial standing, was a partner in the business." On recross examination the plaintiff testified: "You ask if I investigated Mr. Clarke's credit until after the check came back. No, sir, I didn't investigate it. I didn't investigate his credit." Upon what, then, does this evidence show the plaintiff relied? First, the plaintiff after one meeting with the defendant some ten days before and without making any investigation of the defendant's credit endorsed a check drawn on the Albemarle Dining Room because, he says, he relied on Mr. Clarke's credit and Mr. Moseley's representation, made in Clarke's presence and undenied, that Clarke was a partner (it was not said at that time in what he was a partner) and well-to-do financially. Second, the plaintiff says that the reason (he does not say one reason or one of the reasons, but the reason) he endorsed the check for Moseley was because Moseley showed him a passbook indicating that the Albemarle Dining Room had something over $2000 in the bank. Third, the plaintiff says that he would never have endorsed the check if he had not relied on Clarke's credit and Moseley's representation that Clarke was a partner. Fourth, the plaintiff says that he relied, as between Clarke's partnership relationship and the bank book, "more or less on Clark's account because he was the one he said had the money." Under this state of the evidence and when construed against the plaintiff, I am of the opinion that there was no such evidence as to support the verdict upon the essential ground that the plaintiff relied and acted upon the representation to his injury.