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Lamar, Rankin & Lamar 18. Russell.
bought, and that the clerk returned with a sample of Texas rust-proof oats. Wilson, in his testimony, undertook to explain this by saying that the clerk said he wanted a sample of Texas rust-proof oats, but that he did not say he wanted a sample of the Texas rustproof oats which he had sold to Coleman & Ray; and it is contended by counsel for the plaintiff in error that Coleman's testimony on this subject ought to have been ruled out. We do not think so. We think it was admissible for what it was worth. And even if the refusal of the court to rule out this testimony was error, it was an immaterial error, and could not affect the result in this case, under our view of it; because Coleman swore positively that he bought the oats from Wilson as Texas rust-proof oats, and that he bought them by the sample shown him by Wilson at the time this memorandum was made by the latter as to the sale and delivery of the oats.
3. Another ground of exception is, that the court allowed Coleman to testify as to a demand made by his clerk, through the telephone, on Wilson for the oats, and Wilson's reply as repeated to him by the clerk, This evidence was merely hearsay, and the court erred in admitting it; but there is plenty of evidence in the record to sustain the verdict, and we will not send the case back for an error of this kind, it being immaterial in the view we take of the case. We think the court was right in refusing a new trial; and the judgment is affirmed.
LAMAR, RANKIN & LAMAR vs. RUSSELL.
Russell, while a clerk for Lamar, Rankin & Lamar, was the proprietor
of a certain prescription. A member of the firm requested him to continue the manufacture of this preparation for the purpose of
Lamar, Rankin & Lamar vs. Russell.
sale by the firm, and agreed to pay him a reasonable royalty on all sales of it made by them. Russell brought this suit to recover from the firm such royalty on a considerable quantity so sold. His testimony was taken by commission, and he was asked in certain interrogatories propounded by defendants, to reply what were the component parts and the proportions of the same used in the preparation; in other words, to disclose the whole secret of it. He did testify as to what it would cost, and what the bottles in which it was put up would cost, showed by other witnesses what would be
a reasonable royalty, and recovered that much. Held, that it was not error to exclude Russell's answer to the interrog
atory, on the ground that he did not fully answer the same, as de. fendants ought to have made the inquiry, if they desired the infor
mation, before they agreed to pay the royalty. Held further, that the verdict was a proper one.
May 28, 1888.
Contracts. Evidence. Interrogatories. Before Judge HARRIS. City court of Macon. September term, 1887.
Reported in the decision.
GUERRY & HALL, for plaintiffs in error.
John P. Ross and Ross & BLOUNT, contra.
It appears that Russell was a clerk in the employment of Lamar, Rankin & Lamar, a firm engaged in the drug business, and that he was the proprietor of a private prescription of his own, known and sold as “ AxleGrease." A member of the firm requested him to continue the manufacture of this preparation, for the purpose of sale by the firm, and agreed to pay Russell a royalty on all sales made by them. A considerable quantity was put up by Russell accordingly. This suit was brought to recover a sum claimed by Russell to be due him as royalty.
The testimony of Russell was taken by commission, and
O'Shields vs. The State of Georgia.
he was asked, in certain interrogatories propounded by the defendants, to reply what were the component parts of this preparation, and the proportions of the different parts used therein; in other words, to disclose the whole secret of his preparation. He did testify, in reply to the interrogatories, as to what the preparation would cost, and what the bottles in which it was put up would cost. It was shown by other witnesses that one-half of the profits made on the preparation would be a reasonable royalty; and he recovered that much. The defendants insisted that, inasmuch as he had not answered fully the question above referred to, as to the parts and proportions used in the manufacture of the preparation, his answer to the interrogatory ought to be ruled out. The court overruled this objection, and admitted the testimony. We think the court was right in so doing. If the defendants wanted to know the secret of his preparation, they ought to have made the inquiry before they agreed to pay him the royalty. Having entered into the agreement with Russell to pay him the royalty, without having obtained this information beforehand, they cannot now avail themselves of it as they seek to do in this case; and they are bound by their agreement. We think the judgment of the court below refusing a new trial was right; and it is affirmed.
O'SHIELDS vs. THE STATE OF GEORGIA.
Where, during the progress of the argument to the jury in a criminal
trial, the judge stated to defendant's counsel that he desired to step out for a little while, and asked if there were any objection, and none being made, did go out of the court-room and remained out two or three minutes, allowing the argument to go on in his absence, a new trial does not necessarily result from such action. The judge acted improperly in not suspending the trial during his absence, but no objection was made, no motion made to have a mis
O'Shields vs. The State of Georgia.
trial declared in consequence of his action, and it is not pretended that any harm resulted to defendant because of it. May 11, 1888.
Practice in superior court. Before Judge Fain. Bartow superior court. January term, 1887.
Reported in the decision.
GRAHAM & GRAHAM, for plaintiff in error.
J. W. HARRIS, JR., solicitor-general, by Rost. B. TRIPPE, for the State.
It is not contended that the defendant is not guilty under the evidence. The main ground of error relied upon is the temporary absence of the judge from the court-room during the progress of the trial. It appears that the judge stated to counsel for the defendant that he desired to step out a little while, and asked if counsel had any objection ; he replied that he had none; the judge went out and was absent but two or three min. utes. It does not appear that anything happened in his absence to the prejudice of the defendant. No objection was made and no motion was submitted to the court asking that a mistrial be declared in consequence of this action of the judge. We think that the court acted improperly in not suspending the trial during his absence; but as it does not appear that any harm came to the accused because of this irregularity (and none is pretended to have resulted to him on account of it), it is not a good ground for a new trial, under the circumstances of this
We affirm the judgment of the court below refusing a new trial.
Wheeler vs. Robinson,
WHEELER vs. ROBINSON.
This being the first grant of a new trial, the court is not disposed to
scrutinize the case closely to find error in the judgment granting it. May 4, 1888.
New trial. Before Judge HUTCHINS. Gwinnett superior court. September term, 1887.
Fannie M. Robinson sued R. M. Wheeler in an action of trespass. The defendant pleaded not guilty, and that he was acting in the discharge of his duty as sheriff in executing a writ of the superior court when he did the acts for which he was sued.
On the trial, the plaintiff introduced a deed to the land in question, dated March 12, 1874, from Joseph Robinson to her, in consideration of $1,500 paid by her. She showed that Joseph Robinson was the father of her husband, Joseph E. Robinson ; that she bought the property and paid for it with her own money; that on September 29, 1880, she was in the quiet and legal possession of the land, when defendant came and told her he had come to dispossess her husband and his family and to put Messrs. Veal and Scruggs in possession, and showed and read to her a writ of possession which he had with him ; that her husband told defendant that the place was hers, and she told him it was hers and bought and paid for with money she received from her father's estate, and asked him to give her a few days in which to see a lawyer. She told him also that she had a deed, and showed it. He said it was his duty to move her and he would have to do it. She told him she would have to be moved by force. He then consulted with two others who came with him; and she was finally told that they did not wish to do her