Opinion
30106.
DECIDED SEPTEMBER 29, 1943.
Complaint on bond; from Floyd superior court — Judge Porter. February 13, 1943.
James Maddox, for plaintiff.
Barry Wright, Carlton Wright, for defendant.
The court did not err in directing the verdict for the plaintiff in the amount sued for, except as to the item of $90.
DECIDED SEPTEMBER 29, 1943.
STATEMENT BY GARDNER, J.
On January 27, 1939, and for approximately fourteen years previously, the defendant, Hiram Lumpkin (plaintiff in error), was employed by the National City Bank of Rome. For approximately seven years he had held the position of chief teller, being responsible for and in charge of the cash. There were several assistant tellers under him, to whom he would issue amounts of cash daily. He kept a "scratch sheet," or auxiliary record, to compare and balance with the general ledger. The bank examiners visited the bank on January 26, 1939, for the purpose of auditing the records of the bank. On January 27, 1939, the cashier discovered a shortage in the cash of the defendant for that date, amounting to $129.92. The defendant's attention was called to this item, and he was permitted and requested to check it himself. He did so, and found that the amount of the shortage was correct. He reported for work on the 28th and 29th following, but on account of his worried condition he was advised to get himself together before he attempted to work any more. He came back to work the afternoon of the 31st. On the 30th the cashier discovered a "teller's scratch sheet" in the handwriting of the defendant, which contained an item of $14,035, dated January 26, 1939, which had been made on the sheet after the checks for the day had been turned over to the bookkeeper. This item was found on the statement of the account of Southern Brighton Mills. The check for this item was missing. It was later discovered that no check was issued for this item. The cashier had a conversation with the defendant on the evening of the 31st, concerning this item. The bookkeeper (Miss Everett) testified concerning this item, as follows: "I remember very well on January 26th of last year Mr. Lumpkin coming in, after the work-sheets and checks had been turned over to me, with another item that he said was to go into the day's work. He turned over to me a slip at that time. I don't know where that slip is now. I have looked for it; we all did. I have not been able to find it; none of us. He told me it represented . . the pay-roll of the Southern Brighton Mills. As to the amount the slip called for, . . I made some entries on my work then; this is it, $14,035, the item of $14,035 [indicating on paper]. I had made up that sheet prior to the time he brought that slip back to me; we were late; he said we would be doing him a favor to add that in on that day's work. That is the reason it appears on all this. I made those figures myself, the $14000 I did, I just made the one item of it. As to items of that kind, it was not anything unusual, particularly with the Southern Brighton Mills, for them to call over the `phone and make up pay-rolls in that way, and charge it to their account. We were authorized to charge those items against their account. There wasn't anything unusual about that at all."
The cashier, Joe A. Palmer, testified: "The bank examiners had been there, came on the 26th. On the 26th I have his teller's scratch sheet in Mr. Lumpkin's handwriting. I have that sheet. I found an entry of $14035 was made on that sheet after the checks had been turned over to the bookkeepers. . . The teller's scratch sheet I have here for the 26th of January bears an entry of $14035. I found that on January 31st. We were making up the Southern Brighton Mills statement, and there was one check missing, and I checked it back myself and found the amount of $14035 was the item missing. There was no check for that amount. I talked to Mr. Lumpkin that evening. Mr. Lumpkin came in and talked to me and called me up to the directors' room, and told me that he wanted to ask a favor of me, and I asked him what it was, and he said it was in that statement, and to let it go until to-morrow. That is all he remarked; and I says, `You say the statement of Southern Brighton Mills,' and he says, `yes'; we had already run into it, and he requested that we hold it for him `until tomorrow' and he could explain it. I told him that I could not hold it, and I knew what would happen there, and it would be impossible for me to try to connive in any way to shield him, and told him it would be necessary for me to report it to other officials of the bank that night. I did that. I asked him what had happened to the money, and he said he didn't know and he couldn't explain it, and wanted to hold it over until the next day. He asked me not to have him arrested, and he asked me to promise, and I told him, `So far as I am concerned I promise, while I can't tell you what will happen; you know the bank examiners are still here, and I can't tell you what will happen. I am going as far as I can to-day to relieve myself of the responsibility I have,' and he says, `You can hold it for me, you can prevent my being arrested, and it might be worth while to do it,' and I says, `What do you mean? If you have got some of the money you might be talking down my alley, I might be able,' and he said it might be worth something if I would keep my mouth shut. I took it up and reported it to Mr. Graham and Mr. Cothran. They came back to the bank and met with Mr. Lumpkin that night. He made the statement he had been making false entries; but when we asked him what became of the money, he said it was an accumulation of shortage over two years, he didn't know what had become of the money. He positively stated no one else was connected with it other than himself. There is a rule of the bank in regard to reporting shortages. They are required to report the shortages; they are required to make an adjustment for each day's shortages or overages. The cashbook here has a line to report the shortages and overages on it. . . That book for the past six months prior to this was kept by Mr. Lumpkin. I have run a tabulation of the shortages and overages reported by him on that book but I haven't it with me. I made an analysis along about the first part of 1938, and found his cash showed a net overage, and in regard to shortage or overage in his account I found it had been kept very well. While the other tellers had a net shortage over the period, his showed a net overage of twenty or thirty dollars, from July, 1938, to December 31, 1939." This witness further testified concerning a fictitious entry of $6200 in July, 1938, involved in and concerning the item of $14035.
A bank officer, John M. Graham, testified: "Along the latter part of January, 1939, . . I talked to Lumpkin personally that night. . . I learned from Mr. Palmer what Mr. Lumpkin had told him. . . We met at the bank, Mr. Palmer and Mr. Cothran and Lumpkin and me, and then I just tried to find out from Mr. Lumpkin what had happened, . . and he just voluntarily remarked, he says, `Mr. Graham, this is all mine;' says, `No one is mixed up with it and has anything to do with it but me.' He just volunteered that without me asking a question." On cross-examination Graham testified: "As to his saying he didn't get the benefit of any of this money, that it was merely accumulations — no sir, he didn't tell me that at all. What he said with reference to it, I could get no answer from him whatever as to what went with that money. I tried very hard to do so, and couldn't get that. . . He did not say he didn't take a penny of this money, or words to that effect. He said it was every bit his work, and there was no one working with him doing it; that is exactly the words he spoke. When I was trying to ask him what became of the money, he didn't go ahead and tell me he didn't take a penny of it; he didn't say that or any similar words."
L. H. Daniell, officer of Southern Brighton Mills, testified, that he was the treasurer of the Southern Brighton Mills in 1938; that he signed all checks and supervised and directed all deposits; that in July of that year there was no deposit of $6200 by the Southern Brighton Mills; that he had checked his books with the books of the National City Bank to see whether or not he had issued, during the year 1938, a check for $14035, and there was no such check drawn on the Southern Brighton Mills; and that the item of $14035 was removed from the bank without a check. In fact the $14035 item "wasn't there, is not on my records at all." He further testified: "Just a moment ago I stated that our statement agreed with the bank's; that was without the $14035 item being considered. That item. . was not taken into consideration in determining the correct balance; so far as our records are concerned it didn't exist."
The defendant was indicted in the District Court of the United States, Northern District of Georgia, Atlanta Division, for false entries regarding his alleged shortages, in three counts. The allegations of the indictment specifying the manner in which the false entries were made were as follows:
Count 1: "Did made and cause to be made a false entry in the loose-leaf bookkeeping and ledger statement sheet of National City Bank, Rome, Georgia, reflecting the statement of the account of Southern Brighton Mills Inc., Shannon, Georgia, in the column under the heading, `checks in detail' on line thirty-three from the top of said column on said sheet and directly opposite the date `Jan. 26, `39,' as follows, in the following figures, to wit: `14035' which said entry purported to represent and did, in substance, indicate and declare that the said National City Bank of Rome, Georgia, had paid and honored a check of Southern Brighton Mills Inc., on January 26, 1939, for the sum of $14035, when in truth and in fact no check for the sum of $14035 of the Southern Brighton Mills Inc. was paid and honored by said National City Bank of Rome, Georgia, on January 26, 1939, as then and there falsely entered in said statement sheet by defendant, which said entry so made and caused to be made by defendant was false and was known by defendant to be false at the time defendant made said entry and caused said entry to be made."
Count 2: "Did make and cause to be made a false entry in the teller's scratch sheet of defendant, made and kept by defendant as head teller in and for said National City Bank, Rome, Georgia, and the same being a record and a statement of said National City Bank, reflecting the summary of the financial transactions of said bank on January 26, 1939, on the right-hand half of said scratch sheet and in the right-hand money column of said right half of said sheet and as the ninth item of figures from the top of the page in said money column and opposite the words `individual bookkeeper's checks' as follows in the following figures, to wit: `14035' which said entry purported to represent and did, in substance, indicate and declare that the said National City Bank of Rome, Georgia, had paid and honored a check on January 26, 1939, for the sum of $14035, when in truth and in fact no check for the sum of $14035 was paid and honored by said National City Bank of Rome, Georgia, on January 26, 1939, as then and there falsely entered in said teller's scratch sheet by defendant, which said entry so made and caused to be made by defendant was false and was known by defendant to be false at the time defendant made said entry and caused said entry to be made."
Count 3: "Did make and cause to be made a false entry in a record of said bank to wit: in a deposit slip and receipt for deposit of said National City Bank, Rome, Georgia, issued to Lindale Savings Club in the right-hand money column of said deposit slip and receipt for deposit and as the third item from the top of said money column and opposite the word `checks' as follows, in the following figures, to wit: `8677.25,' which said entry purported to represent, and did in substance indicate and declare that the said National City Bank of Rome, Georgia, had received as a deposit checks in the sum of $8677.25 from Lindale Savings Club on November 30, 1937, when in truth and in fact no checks for the sum of $8677.25 were received as a deposit from the Lindale Savings Club by said National City Bank of Rome, Georgia, on November 30, 1937, as then and there falsely entered in said deposit slip and receipt for deposit by defendant, which said entry so made and caused to be made by defendant was false and was known by defendant to be false at the time defendant made said entry and caused said entry to be made."
The defendant pleaded guilty to each count of the indictment, and was sentenced to serve two and a half years on each count, the sentences to run concurrently. In addition to the items of the alleged shortage of $129.92 and $14035, there was included in the suit an item of $90 which represented a deposit made by Mrs. J. O. Horton, alleged to have been received by the defendant and misappropriated. Concerning this $90 item, J. O. Horton testified in substance as follows: He went to the National City Bank with a check for $150, received $60 cash and a deposit slip for $90 for Mrs. Horton. The transaction was made by the defendant. This was the first of January, 1939. At the time the deposit was made the witness did not have the original pass-book of his wife's savings account, but the book was later presented to the bank with the duplicate deposit slip, and the $90 was credited on the book.
Mrs. Moore testified, that she was employed at the National City Bank, having charge of the savings department; that about the latter part of January Mrs. J. O. Horton brought to the bank a deposit ticket for $90. The duplicate deposit slip was taken by the cashier, Mr. Palmer, and laid to one side waiting to make an entry on Mrs. Horton's pass-book. The entry was made to her account in February. The reason it was not made in January was because there was no record of the deposit on the books. The adjustment was made after Mr. Lumpkin left the bank. The witness discussed the amount of the discrepancy with Mr. Lumpkin, and he stated that he took the money in, issued the duplicate deposit slip to Mr. Horton, and turned the money and the other deposit slip over to Mr. Palmer who was "at my window," it being a busy day; "during Christmas with savings cards and the savings department it was a very busy day, and Mr. Palmer stayed at my window during that entire day." When the matter came up, Mr. Lumpkin very promptly stated he had given the money and slip to Mr. Palmer. This he contended right up to the time he left. "We discussed it a number of times, and defendant made the remark that he was not going to make the $90 up." He claimed he handed it to Mr. Palmer.
Joe A. Palmer testified: "We [witness and defendant] had a discussion about the $90 item of J. O. Horton, the duplicate deposit ticket was presented, and no entry had been made on our ledger. I saw the duplicate deposit ticket. I do not know where it is now. Mr. Lumpkin made that ticket. The day after the January 1st holiday, I forget the day it was; it was a very busy day; the savings window was very busy, and I helped give out statements and put entries on the savings book; and Mr. Lumpkin made the statement to me later, after we had talked about it, that he put the money down before me, and deposit ticket. If he did it I have no recollection of it. As to my remembering it if he had done it, I would think so; unless something unusual about it, something else could have been slipped under my nose and I was probably busy on something else and never noticed it, but I didn't see it."
At the time of the alleged shortage the plaintiff, American Surety Company of New York, was surety for the National City Bank of Rome, in the form of what is generally known as a "bankers blanket bond" which contained a stipulation to the following effect: "The losses covered by this bond are as follows: Fidelity Insuring Clause (a) Any loss through any dishonest, fraudulent, or criminal act of any of the employees, including loss of property through any such act of any of the employed, wherever any such act may be committed and whether committed directly or in collusion with others."
The petition contained as exhibit A, and there was in evidence in support of it, the following:
"Rome, Georgia, February 9, 1939. "American Surety Company of New York. 100 Broadway, New York, N. Y. "Claim is hereby made you, pursuant to the terms of your blanket bond No. 192396-K, in the sum of $25,000, by the undersigned National City Bank of Rome, hereinafter called the insured. The following is a detailed statement of the facts in connection with the items composing said claims, which is hereby asserted, and the balance stated below is the true net loss resulting to the insured between June 1, 1936, and January 31, 1939. "Date Items of Claim Amount Total "Jan. 3, 1939. Duplicate deposit ticket for Mrs. J. O. Horton, Savings account No. 7027. No original ticket made, 90.00 "27. Shortage in cash teller H. B. Lumpkin on check of National Bank Examiner, 129.92 "27. On January 26, 1939, fictitious charge was made against the account of Southern Brighton Mills, Shannon, Ga., by debit ticket made out by H. B. Lumpkin, 14,035.00 _________ "Total loss 14,254.92 "Credits: By salary or commission, other credits, securities, off-sets, etc. Total credits _____________________ "Net loss 14,254.92 "The insured does hereby certify: That the foregoing contains a true and complete statement of all facts in connection with this claim, that the loss resulting to the insured is as above stated, and the items composing the debits and credits are correct. That the insured has no other surety ship or insurance under which the above claim, or any portion thereof, is claimable, except the following:"Name of Insurer Class Amount No exception
"That the insured does hereby assign and subrogate to the American Surety Company of New York any and all rights in and to each and every item of loss for which the said American Surety Company of New York shall pay; and it is understood that the said American Surety Company of New York, at its sole discretion and at its own cost and expense, may enforce all rights, claims, and demands by suit, if necessary, in the name of the insured or in its own name. That the insured has caused these presents to be executed for the purpose of inducing the American Surety Company of New York, to accept liability and to pay claim as asserted.
"National City Bank of Rome Insured. By W. S. Cothran, Vice President. (Name and Title of Official making affidavit)
"Sworn to and subscribed before me, a notary public for the County of Floyd of State of Georgia, this 9th day of February, 1939; and in testimony thereof I hereunto subscribe my name and affix my official seal the day and year aforesaid.
"R. B. Ward, N. P. Fulton Co., Ga. Signature of Notary or Commission of Deeds."
In recognition of its liability and in discharge of its obligation to the bank under its bond, the plaintiff paid the alleged shortage to the bank, which was evidenced in the record by a voucher as follows:
"Plaintiff's Exhibit 4. Void if detached.
Draft No. 20667 Voucher No. B50068 Company's Home Office Building "The payment of 100 Broadway, New York, N. Y. this draft shall constitute Fidelity Claim No. 174871. Feb. 23, 1939. a receipt and Pay to the order of National City Bank of release in full of the Rome, Ga. payee's claim dated Fourteen thousand one hundred fifty-four January 31, 1939 ($14,154.92) and 92/100 Dollars under Bond No. The Chase National Bank of the City 192396-K of New York, American Surety Co. of N. Y., By E. P. Watson 1-74 Only through New York Clearing House." The plaintiff, after having paid the bank's claim, accepted the claim as shown by Exhibit A, less a credit of $100 salary; and, relying on the assignment of the chose in action from the bank to plaintiff, entered suit against the defendant for the amount shown therein. In evidence appeared two bonds introduced by the plaintiff, together with the bank's records showing the transaction pertaining to the alleged shortages, including a statement of the account of Southern Brighton Mills with the National City Bank of Rome, and the teller's scratch sheet, during the period involved. The defendant introduced no evidence. The court directed a verdict for the plaintiff in the amount sued for. The defendant's motion for new trial was overruled and he excepted.The contentions presented revolve around two main issues: first, the nature and extent of the alleged shortages; second, the sufficiency of the assignment and subrogation by the bank to the plaintiff.
1. Special grounds 3 and 15 of the motion for new trial are expressly abandoned. Special grounds 1, 2, 4, 5, 8, 11, and 14 assign errors going to the first issue as to the extent and nature of the shortage. Ground 1 objects to testimony of the cashier concerning the teller's scratch sheet. Ground 2 objects to testimony of the cashier with reference to the account of the Southern Brighton Mills concerning the item of $14,035, on the contention that the witness had not been shown to be an expert. Ground 4 complains because the cashier (after he had testified that he had direct charge of the bookkeeping department of the National City Bank, and that the entries were made under his supervision and direction) was permitted to testify that he had traced "out" the item of $14035, over objection that this was a conclusion of the witness. Ground 5 complains because the court permitted the cashier to testify that he made an analysis of the books the last part of 1938, and the defendant's cash showed a net overage, over objection that the bank books were not in court. Ground 8 complains because a question was asked the witness Daniell, treasurer of the Southern Brighton Mills, whether his bank statement was either short or over, because the account itself was not offered, and any answer would be a conclusion. Ground 11 complains of the reception in evidence of the ledger of the National City Bank showing the account of Southern Brighton Mills from January 3, 1939, through February 23, 1939, on the ground that the ledger was secondary evidence, being made up from deposit slips and checks which were available. Ground 14 complains of the admission, over objection, of the ledger sheets of the National City Bank showing the account of the Southern Brighton Mills, from May 18, 1938, through September 9, 1938, because no testimony had been introduced to show that the accounts were correctly kept, or by whom kept, and no checks or deposit slips had been offered in evidence in connection therewith. When we consider these objections as specified in the grounds set forth above, in the light of the reflection of the whole record, we find no cause for reversal in any or all of them, for any of the reasons assigned. On the issue now under consideration as to the nature and extent of the alleged shortage, it will be noted from the statement of facts above that the alleged shortage consisted of three items, one of $129.92; another of $14035; and another of $90. We will deal with them in the order named.
The undisputed evidence shows that on January 26 the defendant as teller of the bank was entrusted with a certain amount of cash. At the close of the day's business he was short $129.92. He was called to check it. This he did, and found no error in the charge against him. It is clear that this item was proved beyond question as a liability against him. As to the item of $14035, this was discovered by the officials of the bank on January 29, 1939. On the evening of January 31 of the same year, in the presence of the cashier, Mr. Palmer, a director, Mr. Graham, and W. S. Cothran, vice-president, the defendant confessed that over a period of two years he had been looting the bank of its funds, and that on January 26, 1939, he made the false entry on his teller's sheet of $14035, in an effort to cover up his shortages. He further admitted that no one else was connected with the theft. All of this appears undenied in the record. Moreover, when he was overtaken in his misdeeds, it is not denied that he made an effort to prevail upon the cashier to assist him to further conceal his shortages. In addition to the confession, he was indicted in three counts for making false entries in the bank's records, to conceal his embezzlement of $14035. These counts, as will be observed by reference thereto, detailed the manner and purpose for which the false entries were made. He entered a plea of guilty to each count, and was sentenced to two and a half years under each count, the sentences to run concurrently.
It is strenuously urged by able counsel for the defendant that these pleas of guilty are of little, if any, probative value against the defendant in the present case, for the reason that the criminal charges were for making false entries, and not for embezzlement. To this reasoning we can not agree. It is true that embezzlement is a separate and distinct crime from that of making false entries for the purpose of concealing embezzlement (which the defendant confessed); yet from the record of this case it is clear that a confession of the false entries as set out in the indictment, taken in connection with the confession to the officers of the bank, along with the records, is conclusive evidence of embezzlement on the part of the defendant. As to the pleas of guilty and admissions and confessions of guilt, all of which are involved in the record of this case, we call attention to the following authorities: 31 C.J.S. 1070: Admission by defendant in a criminal case may be competent as judicial admission, against him, in a civil action involving the same subject-matter. Rosencranz v. Tidrington, 193 Ind. 472 (141 N.E.. 58, 28 A.L.R. 1136): A plea of guilty, in a Federal court, is competent as an admission in a civil action in a state court. 22 C.J.S. 1452: A plea of guilty, knowingly and voluntarily made by accused, is admissible against him as a confession. Groves v. State, 76 Ga. 808: A plea of guilty stands upon the same footing as a conviction by a jury. It has the same force and effect. State v. Call, 100 Me. 403 ( 61 A. 833): A "plea of guilty" in a court is a confession of the crime charged in the indictment. State v. Branner, 149 N.C. 559 ( 63 S.E. 169, 170): A "plea of guilty" differs from a voluntary confession, in that, while the latter is mere evidence of guilty, the former is a formal confession before the Court on which judgment may be rendered. Bishop v. State, 21 Ga. App. 236 ( 94 S.E. 49): A plea of guilty is applicable to all and to each of the counts of the indictment. 31 C.J.S. 1031: Oral admissions of a party are competent evidence against him. 22 C.J.S. 1422: A confession may consist of a series of questions and answers. Owens v. State, 120 Ga. 296, 301 ( 48 S.E. 21): The terms "admissions" and "confessions" are interchangeable. And also, in the same case, the probative value of a declaration that the defendant did the main fact charged is the same whether called a confession or an admission. 22 C.J.S. 1422, citing Simmons v. State, 181 Ga. 761 ( 184 S.E. 291): A confession may consist of a series of questions and answers. Code, § 38-401: "Admissions usually refer to civil cases; confessions to criminal."
The nature and extent of the shortage (in so far as the items of $129.92 and $14035 are concerned) were clearly proved beyond doubt. The court did not err in directing the verdict as to these two items.
So far as the item of $90 is concerned, the evidence did not demand a verdict in favor of the plaintiff. The only evidence to prove this item was from the bookkeeper and the cashier. Neither of them testified that the defendant was responsible for the shortage of this item. It was shown that he received the money from Mr. Horton and wrote up a deposit slip, but as to what became of the money, the witness in charge of the savings department testified that the defendant, when questioned concerning the item, stated that he gave the money and the original deposit slip to Mr. Palmer; that the defendant did not get it and did not propose to make it up. This was the contention of the defendant until he left the bank. The cashier testified that he did not have any distinct recollection of the defendant having turned the money over to him, that he did not remember it, but the defendant could have done so in the rush of business; and the witness, having something else stuck under his nose, might not have observed it. The direction of the verdict as to this item was error.
2. If we are correct in the conclusion reached in the first division of this opinion (and as to this we have no doubt), it necessarily follows that the defendant is liable in a civil action to some one in the amount of money which he wrongfully obtained. There can be no doubt of his civil liability to the bank. Neither can there be any doubt that the assignment by the bank to the plaintiff, as alleged in the petition, is a good and valid assignment by the bank of its claim against the defendant to the plaintiff. This question was decided when the case was before this court on exceptions to the overruling of the demurrer. Lumpkin v. American Surety Company, 61 Ga. App. 777 ( 7 S.E.2d 867). On this question the court ruled: "Under the Code, §§ 85-1803, 85-1805, a right of action for damage to property, or a right of action or chose in action arising from tort which involves, directly or indirectly, a right of property, is assignable. [See citations]. The right of the bank to recover of the employee, on account of his alleged wrongful acts in taking the money of the bank is a right to recover for injury involving the bank's property right in the money. The form of an assignment of a chose in action is immaterial. It is sufficient if it is in writing and manifests the intention of the owner to transfer to the assignee his title to the chose in action. The assignment by the bank of its claim against the defendant contained a description of the various alleged thefts and dishonest acts of the employee. The assignment operated to pass to the plaintiff the title to the right of action of the bank against the employee. The petition stated a cause of action and none of the grounds of special demurrer were meritorious. The trial court properly overruled the demurrer on all the grounds." Thus it remains only to determine whether the evidence as to the assignment was sufficient to sustain the allegation of the petition.
Grounds 6, 7, 9, 10, 12, and 13 assign errors going to the second issue involving the sufficiency of the proof of the assignment and subrogation by the bank to the plaintiff. Before discussing these assignment it might be well for us to discuss the question generally. There are two kinds of subrogation, legal and conventional. This case presents one of conventional subrogation based on the written contract of assignment. The contract of assignment and the proof of it is clear to the effect that it was the intention of the National City Bank of Rome to transfer and assign to the plaintiff whatever right of action the bank had by reason of the defalcation of the defendant. And it should make no difference with the defendant, if he owes the money, to whom he should pay, if he be assured that he will not have to pay twice. There can be no other difference to him, under the facts of this case. It can not be seriously contended that the plaintiff did not issue to the bank a "banker's blanket bond" to indemnify the bank against a misappropriation of its funds by its employees. It can not seriously be contended that the premium was not paid. It can not seriously be contended that the full amount of the claim for $14154.92 was not paid to the bank as the amount misappropriated by the defendant. It can not seriously be contended that the plaintiff paid this amount, conditioned, in part at least, on the assignment of the claim to the plaintiff. In studying this record it is inconceivable that any doubt could be entertained by any one that it was not the intention, as expressed in the itemized claim and its assignment by the bank, to transfer all of the bank's rights in the three items to the plaintiff. While there is reference in the claim to a bond, under the facts of this case the bond thus mentioned is not a material and controlling factor in the assignment. The gist of the assignment which comes at the bottom of the statement of the claim is as to the items which go to make up the amount of the claim. The following contains the germane portions of the assignment: "That the insured does hereby assign and subrogate to the American Surety Company of New York any and all rights in and to each and every item of loss for which the said American Surety Company of New York shall pay, and it is understood that the said American Surety Company of New York, at its sole discretion and at its own cost and expense, may enforce all rights, claims, and demands by suit, if necessary, in the name of the insured or in its own name. That the insured has caused these presents to be executed for the purpose of inducing the American Surety Company of New York to accept liability and to pay claim as asserted."
It will be observed from the statement of facts that the claim and assignments contained in one instrument purported to be executed for the bank by its vice-president, W. S. Cothran, and attested by a notary public. When this assignment was offered in evidence the defendant objected to it on the ground that its execution had not been properly proved. Thereupon the court, over objection, permitted the cashier to testify that he saw the vice-president sign the paper, and that it was the signature of the vice-president. Under the facts of this case, and taken in connection with other evidence, this was not reversible error. Here we have the cashier, Mr. Palmer, and the director, Mr. Graham, officers of the bank, giving the court and the jury, apparently as best they could, the truth of the transaction, in order that the plaintiff might obtain a judgment for the amount of money which it paid the bank for the shortage of the defendant. Under such circumstances, if there were irregularities in the proof of the execution of the assignment, the only party who would be concerned in such irregularities would be the bank. The bank, having received the money under the assignment, would be estopped to deny its validity. Certainly under the facts of this case it is of no concern of the defendant to whom he pays the money he owes, provided he is protected in such payment. The main objection was that neither the subscribing witness nor the vice-president was produced or his absence accounted for, and that the proof was secondary. It was ruled in Fletcher v. Young, 10 Ga. App. 183 (2) ( 73 S.E. 38): "The admission of secondary evidence is generally not ground for reversal, where otherwise there is sufficient legal evidence in proof of the fact to which the secondary evidence relates." It was ruled in Lee v. Holman, 52 Ga. App. 543, 544 ( 183 S.E. 837): "Conventional subrogation depends upon a lawful contract, and occurs where one having no interest or any relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights and remedies of the creditor so paid."
In view of what we have said, the assignment of error as specified in grounds 6 and 7 on the admission in evidence of the two bonds over objection, ground 9 objecting to the admission of the claim of the National City Bank on the American Surety Company for $14154.92, ground 10 objecting to the admission of the canceled voucher of the plaintiff to the bank in payment of the defendant's shortage, ground 12 objecting to admission of one of the bonds, and ground 13 objecting to the admission of the bond, are all without merit and show no ground for reversal.
The court did not err in overruling the motion for a new trial for any reason assigned, except as to the item of $90. The judgment is affirmed on condition that the item of $90 be written off the amount of the recovery within ten days after the remittitur is filed in the court below. Otherwise the judgment is reversed.
Judgment affirmed, with direction. Broyles, C. J., and MacIntyre, J., concur.