5 Ga. 171 | Ga. | 1848
By the Court,
delivering the opinion.
Lorenzo M. Biggers instituted suit in the Superior Court of Harris county, against Stephen Pace, upon the following instrument : “ This is to certify that the undersigned has this day (18th July, 1845,) sold to L. M. Biggers one thousand bushels of good sound corn, to be delivered by the 10th day of November next, at or near Piedmont, in Harris county, Georgia, by the said L. M. Biggers paying to the undersigned fifty cents a bushel at the delivery of said corn.” Plaintiff) on the trial, proved by one John
David Snell testified, that he was present at an interview between the parties on the 10th of November, 1845, about sun down, at the gin-house of defendant. Plaintiff told defendant that he had come to pay for the corn which he had brought him. Defendant replied that he could not have it — that he intended to keep the corn, until it would sell for one dollar per bushel. Plaintiff poured out the money on a cotton bag, and requested defendant to count it. Defendant stepped off very fast, and told plaintiff to go to his (defendant’s) house, and he would count it for him. In going to the house, defendant acknowledged that he owed plaintiff fifty dollars. Witness was called in at the house to count the money, which he did in the presence of both parties. There was four hundred and fifty dollars in cash, besides the fifty dollars which defendant acknowledged he was indebted to plaintiff, which together making five hundred dolíais, was then and there tendered in payment for the corn. Tfffendant informed plaintiff that he could not have the corn at fifty cents per bushel, but that as it was his, he might have it at seventy-five cents. There was nothing said as to any deficiency in the amount tendered. Plaintiff did demand the delivery of the corn, which defendant refused to perform in the manner heretofore stated. Plaintiff did not exhibit defendant’s note, but stated that he had it in his pocket.
Plaintiff proved by McIntyre and Phillips, that the price of com in the fall of 1845, was seventy-five cents per bushel, and by one of them, that defendant admitted that he sold to witness a part of the “disputed com,” between plaintiff an J himself.
Plaintiff having closed his case, defendant by his counsel moved for a nonsuit on two grounds.
2d. That the plaintiff had failed to prove any legal tender by him to defendant on the 10th day of November, in terms of the contract, of the five hundred dollars, the amount to be paid for said corn upon its delivery.
Which motion, after argument of counsel had, the Court decided to be well taken on the 2d ground, to-wit: that the plaintiff had offered no proof whatever of payment or performance on his part, or tender of payment on the day named, and appointed in the contract sued on. And the counsel for the plaintiff, waiving his right to go to the jury with the case, under the opinion of tho Court against himj submitted to a nonsuit, with leave to except to said decision, and then did except to the same.
Let the judgment, therefore, of nonsuit be reversed, and the case reinstated.