41 Ga. 604 | Ga. | 1871
In this case it appears that Brown owed Reed & Company a debt, for which he executed a mortgage, and this litigation arises, on its foreclosure. The whole matter before us is, whether the jury found contrary to the evidence, and the solution of that question depends upon the price which is to be credited for six bales of cotton. On the 1st January, 1868, when the mortgage was executed, the parties agreed that the balance due to Reed & Company was $3,000 00. Brown introduced himself as a witness, and proved that since the execution of the mortgage he had sent twelve bales of cotton to Reed & Company. Six bales were sent early in January, and were received, sold and credited by Reed & ^'Company at some twelve cents a pound, or market value. Brown says that he sent these bales under a contract that if Reed & Company used them or sold them before the time the mortgaged debt fell due he was to pay twenty-five cents per pound. The other six bales were sent in September, and Reed & Company allowed and credited him with twenty-five cents per pound. Orr, a member of the firm of Orr, Brown & Company, testifies he was present at the execution of the mortgage, and did not hear Reed agree to give Brown twenty-five cents per pound for the six bales sent in January. Mr. Reed testifies that Orr wrote him to know if he would take six bales of cotton at Dawson at twenty-five cents per pound, which he did, and which is so credited. The account current was in evidence.
Upon reviewing this evidence we do not hold that the jury found contrary to the evidence. There are many reasons why the jury should have found as they did in regard to the six bales shipped in January, and have believed Mr. Brown mistaken in his recollection. In the first place, he was the defendant, and this • fact alone goes to the credibility of a party. No matter how honest or how honorable, the law imposes this on his privilege •of being witness and party. In the second place, the contract to give twenty-five cents per pound, when the market price was twelve cents was a circumstance for the jury to consider. In the third place, the manner of statement, “that if he sold or used them before the mortgage fell due,” when the time that had to elapse from January 1st to the 1st September thereafter could hardly be held as reasonable time to hold cotton on storage.
Again, Mr. Brown owed Reed & Company, and Reed, by the evidence, came to Dawson, and while there took a mortgage for his debt, and the jury might have held that the six bales were sent as a payment, and that the fact of its being sold and credited, evidences this. Again, the jury might have looked to Orr’s testimony; present at the execution of the mortgage, not hearing such contract, they might have looked to his close relationship both to Brown .and Reed,
Inasmuch as counsel in this case are willing to allow the deduction from the judgment to the amount stated .in account, we affirm the judgment in this case with directions to write off the sum necessary to reduce the judgmént to $2,161 90.
Judgment affirmed.