Corbett v. Gilbert, 24 Ga. 454

Corbett v. Gilbert

24 Ga. 454 | Ga. | 1858

McDonald, J.

By the Court. delivering the opinion.

The error assigned on the refusal of the Court to sustain the demurrer to the declaration is abandoned by the plaintiff in error.

The several rulings of the Court, objected to by plaintiff in error, are made grounds for a new trial, and are embraced in the assignment of error on the judgment of the Court overruling the motion for a new trial, except the decision in relation to the amendment of the verdict.

[1.] The jury found a verdict for six hundred dollars and interest, from the 17th day of July, 1853. The Court directed the verdict to be amended so as to include the interests, making the sum of principal and .interest the verdict. On calculating the interest from the time specified in the verdict, to the time the verdict was returned, and the addition of the interest to the principal, it will be found that the verdict, as amended, corresponds exactly in amount with the verdict as originally rendered. It is only an amendment in form and according to the intent of the jury. The amendment was allowable. (Evans vs. Rogers, 1 Kelly, 467.)

We will now proceed to the consideration of the errors as*459signed on the refusal of the presiding Judge to grant a new trial.

[2.] The first assignment insisted on, is the admission of the testimony delivered by Samuel S. Stafford. It was objected that his information, in relation to the facts testified to by him, was obtained by reason of, and during the relationship of client and attorney. Mr. Stafford Avas called on by the parties to Avrite a bill of sale for the negro, Avho Avas sold. There Avas no confidential communication made to him. The testimony given by him Avas the conversation Avhich passed between the plaintiff and defendant in respect to the contract, in his presence, at the timeheAvrote the bill of sale. The statute prohibiting attorneys from giving evidence does not apply to a case like this, and his evidence Avas properly received.

The nest assignment of error is for refusing the nerv trial, on the third ground taken in the motion, viz: because the Court erred in refusing to give in charge to the jury, each and all the requests of the defendant’s counsel, and in giving the charge as set forth in the record.

[3.] The first request ought not to have been given, because it is not true as a legal principle, and' because, if it were, it has no application to the case. The action is not on the transfer, but on the alleged fraudulent representation by which the plaintiff Avas induced to receive the note.

There is nothing in the record to warrant the second and third requests of the Court to charge the jury. There Avas no promise to guarantee the note in this case proven, and it Avould have been error in the Court fo have charged the jury, as requested in this respect.

[4.] The fourth request ought not to have been given in charge to the jury as asked. If the defendant made a positive statement to the plaintiff that Harrison Avas solvent, in order to induce the trade, when, from circumstances he ought to have knoAvn his condition, and he knerv that he was sup*460posed by the plaintiff to be acquainted with it, and Harrison was at the time insolvent, he is liable.

[5.] The Court ought to have instructed the jury as fifthly requested, that a representation that a person is good or solvent, has reference to the time when the representation was made, and that if the jury believed that Harrison was solvent when the note was transferred, the plaintiff cannot recover. This is a correct principle,and the attention of the jury ought to have been called to Harrison’s circumstances at the time, that they might have determined from the evidence before them, whether his property was adequate to the payment of the note traded to plaintiff] and the debts which he then owed to others. If the property which he then owned in his own right was adequate to the payment of all, he was solvent; if not, he was insolvent.

[6.] There was no necessity for the sixth request, and as there was no evidence of a guaranty of the continued solvency of Harrison, it was improper. But perhaps there might have been no objection to the charge as requested, with a qualification, that unless from the facts in proof, the jury should believe, the representation had reference to the collectibility of the note at maturity.

[7.] We will now examine the charge, as given by the Court to the jury, and in considering it we must have regard to the case made in the pleadings. The plaintiff alleges, in substance, that to induce him to receive the note in part payment for the negro sold by him to defendant, the latter falsely represented that Harrison, the maker of the note, was solvent; and also, that the defendant knew at the time he made the representation, that he was insolvent. Issue was joined on these allegations. The plaintiff, to make out his side of the case, ought to have proven affirmatively both these allegations, to the satisfaction of the jury. The representation that Harrison was solvent at the time, when in fact he was insolvent, was the first branch of the issue. That his insolvency was known to the defendant, was the second matter in issue. *461Both of these allegations must be established by direct proof, or by circumstances in a manner to satisfy the jury. We think that the Court erred in not charging the jury on the second point.

[8.] We think that there is higher and better evidence of a person’s insolvency than a return of nulla bona on an execution against him. Such a return is unquestionably evidence of his insolvency,but not the highest evidence of it. His discharge under the insolvent debtor’s act would be certainly more conclusive evidence. The charge of the Court in that regard was calculated to mislead the jury. They may have considered that evidence, under the charge of the Court, as entitled to such controlling effect, as to exclude all other matters on the question of solvency from their consideration.

The other grounds in the motion for a new trial, that the verdict was contrary to law; that it was contrary to the charge of the Court; that it was contrary to the evidence; that it was contrary to the weight of evidence; and that it was contrary to law and evidence, it is scarcely necessary to consider, as Ave reverse the judgment of the Court beloAv on the grounds already passed upon. We will barely remark that if our judgment rested on them alone, we do not know that we would interfere with the discretion of the presiding Judge, Avho refused the motion.

Judgment reversed.