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Green vs. Akers.

of that agreement, but it was not competent for him to testify as to what was the intention of that agreement. Inasmuch as it was competent for C. F. Akers to testify as to what was the agreement of the parties and the consideration therefor, it was also competent for J. & D. N. Speer, the other parties to it, to testify in rebuttal as to what was the agreement of the parties, and what was the consideration for it, as they proposed to do. The distinction between the testimony of Akers and that offered by the Speers, is this : Akers stated what was the “intention of the agreement” without stating what was the intention of the parties to that agreement; whereas, the Speers offered to testify what was the agreement and the intention of the parties to that agreement, and the consideration therefor. The ruling out of the testimony of the two Speers, which was offered in relation to that point in the case, was error.

2. The theory of C. F. Akers' claim to the money in the sheriff's hands, as disclosed by his evidence, was that Fisk had agreed, in consideration of the proposed settlement between his father, Samuel A kers, and himself, to assign to him, C. F. Akers, his mortgage lien on the fifty acres of land for his own benefit, as compensation for professional services rendered in the suits which were to be dismissed, for bis father, Samuel Akers, and the giving up of the draft on P. Pease. The theory of Fisk's claim to the money was, that the assignment of the lien of the mortgage on the fifty acres of land was made by Fisk in consideration that he should be allowed to make the money due on his mortgage fi. fa. out of the other land covered by his mortgage, without any further litigation by Samuel Akers, and that it was so agreed and understood between the parties at the time, but that the said Samuel Akers, in violation thereof, renewed the litigation by interposing a claim to the land levied on, taking a homestead therein, and selling the same, etc., and has thereby wholly defeated the collection of the money due on his mortgage fi. fa., all of which he proposed to prove, which the court refused to allow him to do. This was error. The court should have allowed the evidence to have gone to the jury, and let

Elliott vs. Pinkus et al.

them have decided, from the evidence, what was the true agreement between the parties, and the consideration therefor. This being an equitable proceeding to distribute money in the sheriff's hands, it would be competent for the jury, if the pleadings shall be so framed as to authorize it, to so mould their verdict as to protect the rights and interests of the respective parties, and do justice between them as they may believe from the evidence they are respectively entitled.

Let the judgment of the court below be reversed.

JAMES M. ELLIOTT, plaintiff in error, vs. S. PINKUS et al ,

defendants in error. 1. Where a motion for a new trial is based upon newly discovered testimony,

and such testimony is that of the clerk of the movant, and the said clerk was examined on the trial, the new trial will not be granted, though the movant and his counsel swear that they did not know that the clerk would so testify, and though the clerk swear that he had not told them he would so testify. The fact that the witness was the clerk, and was sworn on the trial on the subject matter of the newly discovered testimony, is conclusive

of, want of diligence. 2. When the evidence is conflicting and the court below refuses a new trial,

this court will not interfere, if there be evidence enough to sustain the verdict.

New trial. Newly discovered evidence. Before Judge BUCHANAN. Floyd Superior Court. January Term, 1875.

Report unnecessary.

Smith & BRANHAM, for plaintiff in error.

ALEXANDER & WRIGHT; C. ROWELL, for defendants.

JACKSON, Judge.

This case is covered by the judgment of this court in Miller vs. Mitchell, Reed & Company, 38 Georgia, 312, and the facts are sufficiently set out in the head-notes.

Judgment affirmed.

Kimbell vs. Moreland et al.

FRANCIS A. KIMBELL, plaintiff in error, vs. John T. MORE

LAND et al., executors, defendants in error.

1. Where the substance of a long correspondence between the plaintiffs and

the defendant was, that the former proposed to take $1,000 00, $500 00 payable in twenty days, and $500 oo in sixty days, with interest at one and one half .per cent. per month, for an execution in their favor against a third person, the fi. fa. to remain the property, and in possession, of the plaintiffs until paid for, then to be transferred without recourse, and the defendant accepted this proposition, but failed to comply with his undertaking thereby assumed, an action was maintainable on the correspondence, and a

demurrer thereto was properly overruled. 2. To avoid a contract of sale upon which suit was brought on account of

representations made by the plaintiffs to induce the purchase, the plea should allege that they were false and fraudulent, and were so known to

be by the party making them. 3. Where letters are declared on, in substance, as showing a contract, a

literal variance between one of them as presented in evidence, and as set

forth in the declaration, is not sufficient to exclude it. 4. Under the contract declared on, the plaintiffs held the execution as collat

eral security for the payment of the purchase money therefor, and a fund having been brought into court in which it was entitled to participate, it was their duty to collect its pro rata share, otherwise they would have been liable for the loss to the defendant.

Sales. Contracts.. Pleadings. Evidence. Collateral security. Before Judge BUCHANAN. Troup Superior Court. November Term, 1874.

Reported in the decision.

B. H. BIGHAM, for plaintiff in error.

SPEER & SPEER, for defendants.

WARNER, Chief Justice.

This was an action brought by the plaintiffs, as executors upon the estate of James Amoss, deceased, against the defendant, on an alleged promise and undertaking by the latter to purchase of the plaintiffs a certain described execution against Harris, which belonged to the plaintiffs, and to pay them therefor the sum of $1,000 00, with interest on the same

Kimbell vs. Moreland et al.

at the rate of one and one-half per cent. per month until paid. The promise and undertaking declared on by the plaintiffs is contained in letters written by the parties to each other, and annexed to the plaintiffs declaration and made a part thereof. On the trial of the case, the defendant demurred to the plaintiffs’ declaration on the ground that no valid and binding contract was set forthi therein, which demurrer was overruled by the court, and the defendant excepted. The case then proceeded to trial, when the jury, under the charge of the court, found a verdict in favor of the plaintiffs for the sum of $579 97, with interest at eighteen per cent. per annum, from the 30th of May, 1874. A motion was made for a new trial on the several grounds stated therein, which was overruled by the court, and the defendant excepted.

1. It appears from the evidence in the record that the defendant was the owner of a settlement of land which he had obtained from Harris, in right of his wife; that there were judgments and executions against Harris to which the land was subject, and that the defendant was desirous to purchase the same in order to protect his title to the land. The plaintiffs had an execution of that description, and the letters set forth in the plaintiffs' declaration related to the purchase of that execution. In our judgment, the letters annexed to the plaintiffs declaration, written by the defendant to the plaintiffs in relation to the purchase and sale of the execution, furnish ample evidence of a purchase of it by the defendant, and a sale thereof to him by the plaintiffs, including the terms of the sale, as well as the consideration to be paid therefor. The plaintiffs proposed to take $1,000 00 for the execution, with interest thereon at one and one-half per cent. per month until paid, $500 00 to be pail in twenty days, and $500 00 in sixty days, and until that amount was paid, the fi. fa. was to remain the property and in possession of the plaintiffs, and upon the payment of the money the plaintiffs obligated and bound themselves to travsfer the fi. fa. to the defendant without recourse. The defendant accepted and agreed to this proposition, as appears from the correspondence be

a

Kimbell vs. Moreland et al.

tween the parties. There was no error in overruling the demurrer to the plaintiffs' declaration.

2. There was no error in striking the defendant's plea in relation to the statement of the plaintiffs in regard to setting aside the judgment, as alleged therein, against Harris, on account of Judge Bull's absence from the court. The plea did not allege that the plaintiffs made any false and fraudulent representations to the defendant to induce him to purchase the execution, knowing the same to have been false and fraudulent, which would have constituted any legal defense to the plaintiffs' action.

3. There was no error in admitting in evidence to the jury the letter of the 17th of September, 1873, on the ground of variance. The plaintiffs, in their «leclaration, did not pretend to set forth the letters in totidem verbis, but in substance only.

4. It also appears from the evidence in the record, that the lands of A. S. Harris were sold by the sheriff of Troup county on the 7th of April, 1874, to satisfy sundry executions obtained against him, and that when the money arising from the sale thereof was to be distributed, the plaintiffs placed the execution in the hands of the sheriff and claimed that it was entitled to share in the distribution of the money to the extent of $1,000 00, with interest, and that it did receive its pro rata share. What that share was, does not affirmatively appear from the evidence, except by the receipt of the plaintiffs to the sheriff on the fi. fa., dated 30th of May, 1874, for the sum of $529 03, and the admission made by the defendant in his amended plea, that it was the amount received by the plaintiffs from the sheriff on the distribution of the money arising from the sale of Harris' land, which amount was allowed by the jury in their verdict. The evidence in the record showing that it was a purchase of the execution by the defendant, and a sale thereof by the plaintiffs for a stipulated amount as agreed on between the parties, and that by the terms of the agreement, the plaintiffs should hold the execution until the money agreed to be paid therefor was paid. The plaintiffs held the execution as colluteral security for the payment of the money, and it was

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