Camp v. Phillips

42 Ga. 289 | Ga. | 1871

Lead Opinion

McCay, J.

This is a case under the Relief Act of 1868. Before that Act, the defendant in the judgment would have been compelled to set up her rights in equity. Under that Act, she asserts them in a Court of law. Her claim is, that, by the conduct of the plaintiff in the judgment, since the date of the contract, and since the judgment an equity has arisen between them,, which, under the Act of 1868, she is entitled to have adjusted.

It is admitted that if, in fact, Phillips sold his property for bank bills, or procured bank bills in any way, on the promise of Camp to take them in discharge of the judgment, and Camp, after Phillips had so procured them, capriciously refused to receive them, and they were lost in Phillips’ hands, then such an equity does exist. The whole case turns on the facts. They have been submitted to a jury, the jury has passed upon them, the Judge has refused a new trial, and an appeal is made to this Court to set aside the verdict and reverse the judgment of the Court.

To justify this, the verdict must not only be strongly and decidedly against the weight of the testimony, but the Judge must have abused his discretion in refusing to disturb it. It comes to us under the sanction of the decision of twelve sworn men, neighbors of the parties, clinched by the judgment of the Court who heard the evidence. For myself, I believe the verdict of the jury to be right, on the facts.

It is perfectly established that Phillips sold his property for the purpose of paying his debts; that Camp promised him he would take bank bills; that Phillips required of the purchaser bank bills; that such a requirement was unusual and bank bills at a considerable premium, indeed, as the histoiy of the times is, they were thought to be as good as gold; that this particular execution was in the mind of Phillips and of the purchaser; that Camp refused to take the bills, though tendered by the sheriff, shortly after the sale, and that the bills were lost by the results of the war. There is not a break in this testimony but one. It is not, I admit, perfectly clear that Phillips acted on the promise of Camp, or that this promise of Camp was before the sale of his property by Phillips. The dates of the several events are not given in the bill of exceptions, but it seems to me that the evidence of Camp’s promise being anterior to the sale is sufficiently strong to sustain the verdict.

The money does not seem to have gone into Phillip’s hands at all. Evidently the purchaser required it to be passed directly to the officers; as the execution was in Camp’s hands, they make the offer to pay. Evidently the money was procured by Phillips, deposited with the Clerk and tendered in view of the promise. The inference from the actual facts is strong. Why should Phillips exact bank bills? Why should the money be deposited with the Clerk? Why should Camp admit to the sheriff that he had made the promise, if it was not understood that the promise to take the bills was Phillips’ motive for the sale and for exacting the payment in bank bills. We think the jury had a right so to conclude. Indeed, we do not doubt but that this was the truth of the case. If this be so, the equity of the case was with the complainant, and the verdict ought to stand. The inference from the whole conduct of Steedman, Phillips, the sheriff, and of Camp himself, that this promise was before the sale, is, to my mind, very strong, and I cannot consent to set aside this verdict, and hold the jury to have acted contrary to the evidence, because I cannot say that the inference is irresistable.

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Concurrence Opinion

Lochrane, C. J.,

concurring.

The facts in this case have already been stated, and it is not necessary to recite them further than it may be necessary to elucidate our opinion of concurrence in the judgment pronounced by the Court. In Graham vs. Clarke, this Court held that, to sustain a plea, under the Relief Act of 1868, it must appear that the loss which the defendant claims as an equitable ground for reducing the plaintiff’s claim was, in some way, the fault of the plaintiff. Mere loss of property, by the late war, or in consequence of its result, is not sufficient ground for the reduction of a debt contracted before the war. Such is the judgment of the Court in the case referred to; and the naked issue in this case is whether there was sufficient testimony to sustain the finding of the jury, under the principles of law which we have laid down. For, if the record discloses such testimony, even although it is slight, this Court will not reverse the judgment of the Court below refusing to grant a new trial. Upon this point we may remark, in advance, that there is no difficulty in sustaining the verdict of the jury, upon the ground that Camp agreed to receive bank bills in payment of this execution. The question is, at what time; whether before the sale of the property of Phillips, or subsequently thereto. Steed man testifies that, at the time he purchased the property from Phillips, the agreement between Phillips and himself was that he, Phillips, was to pay off the executions existing against him, and that he paid Phillips bank bills as part consideration for the purchase of the property. The amount of the execution was deposited, in bank bills, with the Clerk of the Superior Court, from which the execution issued, and were, by him, turned over to the sheriff, who offered them to the plaintiff in error, who admitted he had agreed to take bank bills, but required Georgia Railroad bills, and refused such as were-then offered. In a conversation between young Phillips and Camp, Camp admitted that he had agreed to take bank money from his father in payment of his execution.

In the view which we take of the evidence in this case, we-are satisfied, from all the surrounding circumstances, that there was evidence upon which the jury might find that the-sale, by Phillips, of his property for bank bills, with which to pay his debts, coupled with the admission of Mr. Camp-that he had agreed to receive such currency in payment for his judgment, and, when tendered to him by the sheriff, his objection only being to the character of the bank bills, and not to the fact that he had so agreed to receive bank bills, was such an admission, coupled with such sale, and tender, and deposit, to the amount of the execution in the Clerk’s office of the Superior Court, as sustained the jury in their finding. It will be recollected, in this case, that Mr. Phillips, the party with whom this agreement was originally made, in 1863, and who made this sacrifice of his property for a currency which had ceased to be common or usual in transactions of trade or business, sleeps in his grave since 1864, and that the evidence of this contract comes from the lips of Camp, by admissions made, and nowhere controverted or contradicted in this record, and must be taken in connection with the acts of Phillips, as appears from the evidence of the Clerk and sheriff, with every legitimate inference that may shed light upon the purpose of the one, as connected with the promise and agreements of the other. I therefore concur in the opinion pronounced by the Court, upon the principle that the agreement to take the bank bills in extinguishment of this execution before the sale-of the property was sufficiently proved to sustain the finding of the jury.

For myself, however, I do not hold it necessary, to bring the defense within the principle of the Relief Act, that the 'party should have sold his property upon an agreement first entered into before the sale; that the plaintiff should i’eceive the bank bills; nor do I hold such to be the principle held by this Court in 40th Georgia. The Judge, in delivering that opinion, evidently puts each case upon its own peculiar equities; and in the case of Cutts & Johnson vs. Hardee, in 38th Georgia, defining the equities, as well as the general proposition therein laid down by the Court, and in a fair construction of the statute, any act of the plaintiff, growing out of the contract, or arising, subsequently, by which the plaintiff had occasioned a loss by some failure of his to do what he had agreed, or which would connect him with such loss by virtue of any act upon his part, ought to go to the jury, to be by them considered and adjudicated. And, while we recognize the mere whim of the jury in the assertion of equity, without proof, will not be supported by the Courts, still, their discretion is broad — intentionally broad — as conferred by the statute, where even proof is slight to connect the plaintiff with the loss of- the defendant’s property, which may be proved by circumstances as well as by positive testimony. This discretion ought not be interfered with or set aside, except in very flagrant cases of abuse. And where, in 1863, a party agreed to take any specific currency in ex-tinguishment of a debt, in or out of judgment, and the defendent, by sale of property, or by loan, or in any other manner procured said funds and tendered them, in compliance with such agreement, and the plaintiff refused to perform what he had agreed, such failure constitutes an equity, under the statute, the adjustment of which, by verdict, the Courts would not be authorized to disregard and set aside.

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Dissenting Opinion

Warner, J.,

dissenting.

This was an application to open a judgment under the provisions of the second section of the Relief Act of 1868, and, upon the trial of an issue between the parties, the Court charged the jury, “that if Camp agreed with Phillips to receive bank bills in payment of the debt, and Phillips went forward and sold property at a less price than he could have got for it in the common currency of the country, and Phillips tendered him the bank bills in a reasonable time, then it amounts to a payment, and that the jury should find for Mrs. Phillips.” The charge of the Court assumes that there was evidence that Camp agreed with Phillips to receive bank bills in payment of his debt before Phillips sold his property; whereas, there is no evidence in the record of any such agreement between the parties. The charge of the Court also assumes that there was evidence that Phillips, in pursuance of that agreement, went forward and sold his property at a less price in bank bills than he could have got for it in the common currency of the country; whereas, there is no evidence in the record that Phillips went forward and sold his property at a less price in bank bills, in pursuance of that or any other agreement made with Camp.

This charge of the Court to the jury, in view of the facts disclosed by the record, was, in my judgment, erroneous, and being in relation to a vital point in the case for the consideration of the jury in adjusting the equities between the parties, I am of the opinion the judgment of the Court below should be reversed.