80 Ga. 642 | Ga. | 1888
Walker foreclosed a mortgage on certain personal property belonging to Chambers & Co., and execution was issued and levied thereon. One of the firm of Chambers & Co. filed in their behalf an affidavit in the nature of an illegality, in which he set up by way of defence the nonperformance by Walker of a contract which he had made with them at the time the mortgage was given, the mortgage being upon certain horses, mules, carriages,' etc., which Walker had sold to them. They insisted that Walker had also sold out the good will of the livery stable business in which this property was employed, and had agreed to aid them in securing patronage; and that Walker had violated his contract; by reason of which he had damaged them to the amount of the mortgage.
A great deal of evidence was heard on the trial of the case, much of which was immaterial, and the jury found a verdict in favor of W alker. Chambers & Co. moved for anew trial, on seventeen grounds; the motion was overruled, and they excepted.
The first three grounds are the ordinary grounds, that the verdict is contrary to law and to the evidence.
The affidavit presented by, the plaintiffs in error themselves states that there was a mortgage foreclosed; and the contents of the mortgage and of the affidavit of foreclosure (which had been lost) were proved on the trial by Mr. Westmoreland, counsel for the plaintiff. We therefore do not think this statement in the charge was error.
We do not think there is anything in this ground of the motion. Under the pleadings and facts of this case, we see no error in the charge complained of. We think the latter part of the charge is sufficiently disjunctive as to the breaches of contract; the court charged the jury that it would be their duty as to this issue to allow the defendants such damages as they showed by the evidence they had sustained; which meant, such damages as were sustained by any non-performance on the part of the plaintiff of the conditions of the contract.
We think this request was too general; and besides, that it is covered fully in the general charge of the court. The court is requested to charge the jury that, in a certain event, the plaintiff “ would be responsible for breach of the contract.” Responsible how ? If the request had gone further, and said “ responsible for such damages as the proof showed they had sustained,” it would have been sufficiently specific, and a good request. As it stood, it was calculated to mislead the jury.'
This is not a good assignment of error. It fails to state in what respect the evidence is irrelevant. Counsel cannot expect this court, upon such a general assignment, to look through this large record containing nearly three hundred pages, to ascertain whether testimony is relevant or not; it is the duty of counsel to plainly and distinctly set forth the errors complained of.
Q. Do you know anything about Mr. Walker endeavoring to influence any stock dealers or anybody else not to go to Chambers & Co’s stables? A. No, sir. I don’t know anything about it. — Objected to. Col. Westmoreland stated that he would like to ask the witness as to his knowledge of Mr. Walker’s influencing stock men not to go to Chambers & Co’s stables. Mr. Jenkins objected to the question.
By the Court: Were you bringing stock to this market to feed before that time? A. Yes, sir.
By the Court: Now you can ask him.
By Col. Westmoreland: During that time did you know Mr.. Walker to do or say anything to influence stock men not to go to Chambers & Co’s? A. No, sir; I never did.
These answers being utterly irrelevant.”
We do not see the relevancy of this testimony, but we cannot say that the court erred in admitting it. The plaintiff in error fails to show in what respect it is irrelevant. This ground is not made out as the law requires.
The 14th ground complains of the admission by the court of the testimony of Brady, over objection by the defendants. This testimony is to the same effect as that of Moses, set out in the 13th ground, and is also objected to as irrelevant, and what we have said in relation to that ground will dispose of this.
*650 Q. What was it agreed to give the $4,050 for ? What was it on your part ? A. We expected to be benefited.
Col. Westmoreland objected.
By Mr. Jenkins: I am attempting to show that they did not foreclose simply the property, but the good will of the concern, the patronage, etc.
By the Court: The rights of these parties must be regulated by the contract they made. You can ask him what were the terms of the contract. What private understanding he had in his own mind would not be of any consequence. You can ask him about the value of the property as you have already done.
The question and expected testimony'were admissible both as being part of the res gesta, and as being the understanding of one party to the contract in issue.”
We think the court was right in his ruling, and that he put it upon the proper ground.
12. The 16th ground is, 16th. Because the court erred in denying defendant’s counsel the opening and closing argument, the burden of proof being on the defendant to show breach of contract and damage resulting therefrom.”
This is somewhat a serious question, under some rulings of this court. The plaintiff in the court below opened the case, and the burden rested on him to make out his case, in my opinion, as it rests on the plaintiff in every case ; but we do not think the error complained of in this ground was such as to call for the grant of a new trial in this case.
We do not know that it was absolutely necessary that the mortgage should be established; there appears to have been a copy of it admitted in evidence, possibly a certified copy from the records of the court; and while we think it would have been better to have had the affidavit, if if was lost, established, yet at the time the evidence was admitted, no objection of this kind, so far as appears from the record, was made by counsel for the defendant.
Judgment affirmed.