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Mahone vs. Bryant.

BLECKLEY, Judge.

The action was by a renter against his landlady. The contract was in writing. It stipulated, among other things, that the land was to be worked, the repairing done, and the crops saved, under the superintendence of Tilman H. Mahone. The rent reserved was one-fourth of the cotton and one-third of other crops made on the premises. Nine bales of cotton were gathered, gioved and packed. The tenant got two, and the other seven were taken and sold by the superintendent. This suit was to recover the tenant's share of these seven bales or of the proceeds of their sale. The plaintiff had a verdict for $112 02, besides interest; and the defendant moved for a new trial, complaining that the verdict was contrary to law and to evidence.

1. It is insisted that the written contract, which the plaintiff produced in evidence, was not made with him alone, but with him jointly with two others, who, as well as the plaintiff and the defendant, executed and signed the writing. This is true, but we are inclined to think that, owing to the peculiar phraseology of the instrument, the plaintiff was the sole renter of the land, and entitled, severally, to all the produce, except the landlady's share reserved for rent. Taking the contract altogether, the intention seems to have been to treat the plaintiff as renter, and the other two as his helps or assistants in the cultivation, etc., their compensation being matter of arrangement between him and them. But whatever may be the proper construction of the contract in this respect, it was too late, after verdict, to make the question. There was no plea in abatement for non-joinder of the omitted parties, and the contract was admitted in evidence without objection. It should have been objected to on the ground of variance, if it were substantially different from the writing declared on, and if the defendant bad wished to avail herself of that difference. She has suffered it to be sued on as a several contract and to come before the jury and remain before them as such. After verdict, she cannot be allowed to say that, al

Mahone vs. Bryant.

though she contracted wish the plaintiff, she did not contract with him only, and that his recovery is, for that reason, unwarranted.

2. Two short comings are said to be in the parol evidence; namely, as to the value, or the amount realized for the seven bales of cotton, and as to the defendant's consent to the act of Tilman H. Mahone in taking possession and making the sale, Tilman H. Mahone, introduced by the defendant as a witness, testified that nine bales of cotton, averaging about five hundred pounds, were raised on the land; that plaintiff got two bales when cotton was worth eighteen cents per pound; that he, witness, took the other seven bales and sold them; that he paid plaintiff $95 00 at one time, $115 00 at another, $30 at another, $900 at another, and $21 00, in cotton, at another; that he could not remember the different amounts he had paid the plaintiff out of said cotton money, but that he had paid to him the whole of it; meaning, doubtless, the whole of plaintiff's share. From this evidence, more especially when taken in connection with that of the plaintiff, that he was offered for the seven bales eighteen cents per poand, we think the jury were authorized to infer that eighteen cents a pound was its value, and that, when sold, it brought that price. The person who sold it was on the stand as a witness, and said that was the value of cotton when the plaintiff got the two bales. If the seven bales had been worth less or had sold for less, would not this witness have so testified? On the other point, that of the defendant's consent, while there was no direct proof of it, there were circumstances before the jury from which, applying the logic of experience and common sense, they might have inferred it also. Tilman H. Mahone was mentioned in the written contract as the superintendent of the farm; the defendant, the owner of the farm, was a woman bearing his name, not improbably his wife or mother; she introduced him as a witness, and if he had not been her agent to take charge of the crop and sell it, nothing would have been more natural than for her counsel to have elicited from him that fact in his examination. Nothing to the contrary of such an agency ap

Gibbons et al. vs. Jones et al.

peared in the evidence. He acted on the line of such an agency, for he paid over to the plaintiff a part of the proceeds of the cotton. The defendant sought to prove by him, and didl prove, so far as his testimony could establish it in opposition to that of the plaintiff, that payment was made in full. One of the pleas was payment, and the only payments attempted to be proven in support of this plea were those which were made by him. In most cases the jury must not only hear the testimony, but reason upon it. They are not restricted to its letter, but may follow out its indications, and, from one fact infer another. Sometimes the absence of evidence to a negative may be a reason for trusting to even slight indications of the affirmative. The jury must, in civil cases, at least, be allowed due scope for the reasoning faculty. A verdict is not the mere reflex of what truth there is in the testimony; it is compounded of evidence, law and logic.

In respect to payments made to the plaintiff, he gave an account of them differing in amount, considerably, from that given by the defendant's witness. He undertook to specify accurately every payment which he had received, and the jury evidently believed him. It was their right to do so.

Judgment affirmed.

ALFRED R. GIBBONS et al., plaintiffs in error, vs. ADDISON

A. JONES et al., executors, defendants in error.

Where the right of executors to recover from legatees depends upon a mis

take in their returns upon the basis of which a settlement had been had, and they seek to avoid such settlement on account of such mistake, the legatees may also attack charges, etc., in the returns. The settlement is either binding on both parties or neither.

Administrators and executors. Settlement. Before Judge UNDERWOOD. Floyd Superior Court. July Term, 1875.

Reported in the decision.

VOL. LVI, 20.

Gibbons et al. vs. Jones et al.

C. ROWELL; DABNEY & Fouche, for plaintiffs in error.

ALEXANDER & WRIGHT, for defendants.

WARNER, Chief Justice.

· This case came before the court below on an appeal from the court of ordinary of Floyd county. The jury, under the charge of the court, found a verdict in favor of the executors of Samuel Gibbons, deceased, against the legatees under his will, for the sum of $395 00. A motion was made for a new trial on the several grounds therein set forth, which was overruled by the court, and the legatees excepted.

It appears from the evidence in the record that the executors and legatees had a final settlement in regard to the estate in their hands, on the basis of the returns of the executors to the court of ordinary then before them, and that on the 2d of June, 1873, the executors turned over to the legatees, (they all being of age, all the remaining assets in their hands under the following written agreement:

"GEORGIA-FLOYD COUNTY.- Whereas, the executors of Samuel Gibbons, deceased, A. A. Jones and J.I. Wright, have turned over to us the balance of the property as enumerated in their second return made up to the 1st day of June, 1873, belonging to the estate of said deceased, after supplying to Mrs. L. U. Presley a plantation for which they paid to A. Griffeth $8,000 00, $2,000 00 remaining yet to be expended in permanent improvements, and also after having supplied to W. S. Gibbons a plantation for which they have paid to A. Griffeth $9,500 00, $500 00 remaining to be expended by them in permanent improvements: Now, therefore, in consideration of the facts above stateil, we bind ourselves individually and for each other: First, that we will supply to our mother such sums of money as she may need from time to time out of the proceeds of the property turned over to us, and such as the executors are directed to allow her under the will. Second, that W. S. Gibbons will expend $500 00 and

Gibbons et al. vs. Jones et al.

Mrs. L. U. Presley, $2,000 00 in permanent improvements
upon their respective plantations.
“Witness our hands and seals, June 23, 1873.

“L. U. PRESLEY, (Seal.)
“W. S. GIBBONS, (Seal.)
“A. R. GIBBONS, (Seal.)
“J. H. PRESLEY, (Seal.)”

After the settlement had been made as before stated, and the property and assets turned over to the legatees, the executors discovered a mistake in their returns, in which they had omitted to credit themselves with $400 00 as interest on advance payments made by them for the benefit of the estate. The legatees refused to have the returns corrected, and the executors then made a statement of the mistake in their return and filed it with the ordinary, and cited the legatees to appear before the court of ordinary and show cause why the return of the executors, including the $100 00, should not be received as their final return. The legatees appeared and contested the $400 00 item in the return, and also claimed the right to contest several other items in the return. The ordivary overruled all the objections of the legatees to the executors' return, and allowed the item for the mistake to be included therein to the amount of $395 00, and rendered a judgment against the legatees, in favor of the executors, for that amount. On the appeal trial in the superior court, the court charged the jury, amongst other things, “that if, from the evidence, they believed the executors surrendered the assets in their hauds in settlement, and the legatees accepted them with the full knowledge that the statement made by the executors, and which was then present, contained the charges for extra compensation, attorneys' fees, etc., now complained of, this amounts to a settlement, and the legatees are bound by it. If, from the testimony, you are satisfied that there was a mistake made, and the executors overpaid the legatees any sum, then they are entitled to recover the amount thus overpaid.” This charge of the court, in view of the evidence

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