
    Garbutt Lumber Company et al. v. Prescott.
    April 21, 1910.
    Trover. Before Judge Whipple. Ben Iiill superior court.
    August 2, 1909.
    
      L. Kennedy and Hal Lawson, for plaintiffs in error.
    
      Haygood & Cutts and A. J. McDonald, contra.
   Lumpkin, J.

1. An action of trover was brought against a corporation and four individuals, to recover two promissory notes. They did not set up separate defenses, but pleaded jointly. In their answers they admitted possession, but denied conversion or that the notes belonged to the plaintiff. They pleaded in abatement' that there had been no demand upon any of them for the property, and the action was premature but there was no separate trial on that plea. They also pleaded, that the notes were given for the purchase-price of certain property, bought from the husband and agent of plaintiff by the maker; that there was fraud in the transaction on the part of the plaintiff’s agent, and the trade was rescinded; that the plaintiff contemplated discounting the notes, and left them with defendants for investigation with that end in view; that, upon the agreement of rescission, the plaintiff’s agent directed the notes to be delivered to the maker, which was done; and that the notes were valueless, and the defendants had offered to deliver them to the plaintiff. There was evidence to show, that the four individual defendants were brothers and controlled the corporation; that a written demand had been made on the company for the notes; that one of the brothers, with the notes in his possession, met the husband and agent of the plaintiff, and, after a conversation with him, delivered the notes to the maker (another brother), and his name was torn off. The notes were demanded of the brother so acting. Evidence was introduced as to whether the plaintiff’s husband agreed to a rescission of the trade as part of which the notes were given, and to their delivery to the maker, and, if so, whether he acted without authority to do so, and whether he was only a special agent. Reid, that a verdict for the plaintiff against all the defendants will not be set aside as to- all or any of them on the ground that a demand for the notes was not shown to have been made on each of them.

2. In other respects the verdict was supported by the evidence.

3. The other grounds of the motion for a new trial are without merit, and are not such as to require separate discussion.

4. Under the special facts of this case, damages for bringing it to this court for delay only will be denied.

Judgment affirmed.

All the Justices concur.  