111 Ga. 404 | Ga. | 1900
Everett Ridley Ragan Co. brought two suits in* thecounty court of AVashington county against Brown & Franklin and H. M. Franklin, one on a promissory note for $100, and the other on two promissory notes of $100 each, besides interest. These cases were appealed from the county court to AVashington superior court, and were there consolidated and tried together before a jury before his honor John C. Hart, judge pre
• The case then proceeded to trial, and the following is substantially the testimony introduced in behalf of the defendants: On September 26, 1894, the Brown & Franklin Company made an assignment to J. M. Brown, assignee. On October 18, 1894, there Avas a receiver appointed by the United States court to take charge of the assets of this concern and wind it up. The company was indebted to Everett Ridley Ragan Company of Atlanta in the sum of $1,087.81, and Willis Ragan, of plaintiff’s firm, came down to see defendants after the receiver had been appointed, and suggested a settlement. The case Avas set for a final hearing about NoAmmber 26th of the same year. After Ragan went back to Atlanta, IT. M. Franklin, of the defend
There was testimony introduced in behalf of plaintiff, and some conflict in the evidence of Ragan and the witness, Franklin, Ragan claiming that he told Franklin when he came to Atlanta that he would not take less than one hundred cents on the dollar for his claim. There was testimony tending to show he was not a party to the compromise agreement with the creditors. He admitted, however, that he did not inform his own attorneys that he had received anything at all on his claim in
After the close of the evidence and charge of the court, the jury returned a verdict for plaintiff for $300, and interest, costs of suit, and attorney’s fees; whereupon defendants made a motion for a new trial, and to the judgment of the court overruling this motion they except.
In 6 Am. & Eng. Ene. L. (2d ed.) 394, it is declared : “Any advantage obtained by any creditor in any agreement of composition without the knowledge and consent of all the other parties to the composition is a fraud on the other creditors, and renders the composition void as to those innocent creditors. ” A vast amount of authority is cited upon that principle. But the same principle has been announced by our court in Woodruff v. Saul, 70 Ga. 271 (1). On pages 395 and 396 of the same volume of the Enc. of Law, it is declared : “Any agreement -for such a secret preference of any creditor is void and will not be enforced by the courts, on the ground that such agreement is fraudulent and to enforce it would be against public policy. Notes and securities given under such secret agreement are void between the original parties and third parties who take them subject to equities. Money paid under a secret agreement as an inducement to the creditor to sign, or in excess of his claim under the composition, may be recovered
The testimony in the present case introduced in behalf of defendants we think certainly makes out as strong a case of coercion. The court, therefore, erred in sustaining the demurrer to that portion of the answer which seeks a recovery back of money thus paid by^ the debtor to the creditor, the amount claimed being within its jurisdiction.
Another ground in the motion excepts to the following charge of the court: “It is the contention of the plaintiff in this case that he made no such misrepresentation, but on the contrary stated all along that he was entitled to one hundred cents on the dollar, and that it was finally agreed among himself and certain members of the Brown & Franklin Company that Ragan was to sell Everett Ridley Ragan Company’s debt to Mr. J. D. Franklin, a kinsman of certain members of the Brown & Franklin Co., and that he was to receive one hundred cents on the dollar for the debt of the Brown & Franklin Co., a portion in cash and these notes’representing the balance. If you find that to be the truth of the case, then Everett Ridley Ragan Companyought to recover.” Movants allege that this charge was erroneous: (1) because it tended to confuse and mislead the jury as to the real issue involved. (2) Because it is not a correct statement of the law, for the reason that if plaintiff would not have been entitled to recover in the event the accounts had been marked settled, then it would not have been entitled to recover although' the accounts were transferred to J. D. Franklin, if the transfer
Another ground in the motion was, that the court erred in charging the jury as follows: “If you were to find from the evidence in this case that Everett Ridley Ragan Co. had deceitfully and knowingly deceived other creditors and got them to accept less than Everett Ridley Ragan Co. received, then I charge you that the law would estop him, for the reason that the law does not become a party to any deceit.” Objection was made to this on the ground that it is not a fair statement of the law. ¥e think the charge implies that Everett Ridley Ragan Co. must be guilty of a moral fraud, and that it was calculated to mislead thejury by leading them to infer that the defendants were liable unless such moral fraud had been perpetrated by plaintiffs. Under the contention of the defendants, supported, by their testimony, in view of all the authorities to which we have called attention, and the principles of law therein announced, we do not think the moral quality of the conduct of plaintiffs or their representative in the transactions complained of in the answer is necessarity involved. If they are guilty of the con-, duct claimed, they are guilty of legal fraud, which would effectually render null and void the entire transaction. For instance,. as contended by counsel for plaintiffs in error, if the plaintiffs below, even without intention to deceive anybody, had changed their minds as to accepting the fifty cents on the dollar, butaf
In the light of this record and what is herein laid down as the law applicable to the present case, we think these rulings and charges of the court necessitate the grant of a new trial.
Judgment reversed.