Obrázky stránek
PDF
ePub

DeBard v. Smith.

thought proper to desire it. Indeed, the manifest design of the statute was to provide a more effectual mode for the speedy settlement of insolvent estates. An equitable bar therefore will be as effectual as a legal bar.

The question made upon the presentment of the claim need not be considered.

The judgment must be reversed.

DE BARD v. SMITH.

1 S exchanged with D, a sulky for a wagon, agreeing that he would put it in good repair, and accordingly instructed a carriage maker to make certain repairs, amounting to $19 50, for which he paid. D, to whom the carriage maker was indebted, directed other repairs to be made, amounting to $13, which were necessary to put the sulky in the condition in which S stipulated it should be; this sum S refuses to pay. Held, that in cases in which the amount in controversy is so small, the court looks rather to its equity and justice, than the strict rules ordinarily applied at law: that S was not liable to the carriage maker for the $13, but D was liable in virtue of his contract; that as the carriage maker was indebted to D, he might retain it from his indebtedness, and D recover it of S.

Error to the County Court of Lowndes.

A. GILCHRIST, for the plaintiff in error.
N. Cook, for the defendant.

COLLIER, C. J.-The facts of this case, as stated in a bill of exceptions, are substantially these: The defendant exchanged with the plaintiff, a sulky for a buggy, agreeing that he would put the sulky in good repair. At the time of the exchange, the sulky was at a carriage makers, to be repaired, and the defendant gave instructions as to the repairs he desired-amounting to $19 50, which sum he paid to the car

Bohannon v. Springfield.

riage maker. The plaintiff directed other repairs to be made, which cost $13, and were only necessary to put the sulky in the condition in which the defendant stipulated it should be. This latter sum the defendant refused to pay, and the carriage maker holds the plaintiff responsible for it, and is in fact indebted to the plaintiff in a large sum. The case was removed by appeal from the justice of the peace to the County Court, where a judgment was rendered for the defendant.

In a case of this character, the court looks rather to its equity and justice, than the strict rules which are ordinarily applied at law. The defendant's contract obliged him to have the sulky put in good repair, and he became liable for a breach, if he refused to do this. That he did refuse to expend more than $19 50, which was insufficient to make the repairs agreed, and the sulky was only in the condition contemplated by the parties, after the additional expenditure of the $13, is apparent from the proof.

The defendant was not liable to the carriage maker for the payment of this latter sum; he refused to employ him to make any other repairs than those he had directed. But the plaintiff was responsible to the carriage maker in virtue of his contract with him, and the latter might have retained it from his indebtedness to the former. We cannot doubt that the proof entitled the plaintiff to recover. The judgment of the County Court is consequently reversed and the cause remanded.

BOHANNON v. SPRINGFIELD.

1. To make out a case of bailment, there must be a contract, either express or implied, and the mere taking by an overseer of cotton seed left by the former occupant on the plantation of the employer of the overseer and the use of it by his direction, will not support a declaration by the owner of

Bohannon v. Springfield.

the cotton seed, against the overseer for the value of it, as upon a bailment to him.

Writ of Error to the County Court of Marengo.

THIS suit originated in a justice's court, and was removed by certiorari to the County Court, where Springfield declared against Bohannan for the value of a lot of cotton seed, alledged to have been delivered to the defendant and not redelivered on demand.

At the trial, it was proved by the defendant, that the plaintiff, in the year 1844, cultivated a portion of one Tayloe's plantation, ginned his cotton there, put his cotton seed in a pen, on the said plantation, and left the cotton seed thereon, when he delivered the plantation to the defendant as the overseer of Tayloe, about the first of the year 1845. That Tayloe employed the defendant as his overseer, for the year 1845, and that he in that capacity went on the plantation, conducted and managed the business thereon, and planted thereon the said cotton seed, together with other cotton seed, which also was on the premises and that he was directed so to do by Tayloe.

On this evidence the defendant moved the court to instruct the jury, that if the plaintiff left his cotton seed on the plantation and premises of Tayloe, when he delivered the possession to Tayloe, and that if the defendant went upon the plantation, and carried on business there, as the overseer of Tayloe, the cotton seed remaining there, without any agreement with defendant, it was not a bailment by the plaintiff of the cotton seed to the defendant, as bailee, and that the defendant, as bailee, was not liable to the plaintiff for the same. Also, that if the defendant was employed by Tayloe, and put on the plantation as his overseer and planted the cotton seed for him, the same then being on the plantation, he, the defendant, was not liable to plaintiff for the same.

These charges were refused, and the defendant now asassigns the refusal as error.

W. E. CLARKE, for the plaintiff in error.
KIRKSEY, contra.

Head, &c. v. Shaver & Adams.

GOLDTHWAITE, J.-The merits of this cause lie in a very narrow compass; the plaintiff declares as on a bailment of the cotton seed to the defendant, and in order to support his declaration, must show either an express contract to re-deliver it, or circumstances from which a contract may be implied, as all bailments are said to be contracts between the bailor and bailee. The proof, however it might sustain another form of action, if a taking or conversion by the defendant, is shown, fails in establishing either an express or implied contract, to re-deliver the cotton seed, and consequently the charges requested should have been given.

Judgment reversed and cause remanded.

HEAD, USE OF YOUNGBLOOD v. SHAVER & ADAMS.

1. The expression of the belief of a witness, that he saw a fact transpire, is not matter of opinion, so as to authorize the court to reject the evidence. 2. The admission of the nominal plaintiff, after he had parted with his interest, cannot be given in evidence to defeat the beneficial plaintiff.

Error to the County Court of Chambers.

DEBT by the plaintiff in error, against the defendants in error, before a justice of the peace, on a note for thirty-eight dollars. The justice rendered a judgment in favor of the plaintiff, from which the defendants appealed to the County Court.

The defendants pleaded payment, and introduced the record of a suit commenced by attachment, against the nominal plaintiff, in which the defendant Shaver, was summoned as a garnishee, and answered, that he was "indebted to the defendant in the sum of twenty-seven dollars and eighty-seven and a half cents, and a judgment of the court against

9 791

93 520

Head, use, &c. v. Shaver & Adams.

him on his answer for that sum, which he had paid. To the introduction of this as evidence the plaintiff objected.

The defendant also introduced evidence of the declarations of the nominal plaintiff, in relation to the note, after Youngblood had become interested in it. That he heard the payée of the note say, that an attachment had been commenced against him, and Youngblood had become his security in a replevy bond, and in a note for a fee. That he had left the note on Shaver with Youngblood to indemnify him, to be applied to the payment of the costs of the attachment, if it went against him, and if he succeeded to collect the note, and forward the amount to him in Illinois, where he then resided. That he had seen the note some eighteen months before, in the hands of the nominal plaintiff, and confidently believed the note sued upon to be the same, but could not say positively.

The plaintiff objected to proof of the instructions of the nominal plaintiff, after Youngblood had become interested in the note, and also to the proof of the belief of the witness. Other testimony was given upon which no question is raised. Judgment was rendered for the defendant.

The assignments of error present the questions raised upon the bill of exceptions, and the rendition of judgment in favor of the defendants.

ORMOND, J.-The defence set up in this case, was a payment of a judgment against the defendant, as a garnishee in an attachment suit, against the nominal plaintiff. It cannot be doubted, that this was proper evidence, nor was the defendant concluded by his answer from showing, that the indebtedness he then admitted from himself, to the nominal plaintiff, was made in reference to the note here sued upon, though the indebtedness then admitted was not so great as the note upon its face called for.

The expression of the witness, that he had seen the note, in the hands of the nominal plaintiff, eighteen months before, and believed it to be the note sued upon, but was not positive of the fact, is not the expression of an opinion in the proper sense of that term. It is the assertion of the existence of a fact, qualified by the admission that the recollection of

« PředchozíPokračovat »