Davis v. Smith

30 Ga. 263 | Ga. | 1860

By the Court

Lumbkin, J.,

delivering the opinion.

There is no complaint that this case was not fairly submitted by the Court to the jury. On the contrary, one of the errors assigned is, that the verdict was contrary to the charge of the Court.

Was the verdict strongly and decidedly against the weight of evidence?

The witnesses on both sides are of the most reputable character ; they differ as to the capacity of Clarke to make a contract. Who is to decide between them ? We answer emphatically, the jury.

Ambrose Hutchinson testifies, that Clarke was incapable to make a contract, and he assigns very sufficient and satisfactory reasons for this opinion. Hr. C. M. Park, the family physician of Clarke, concurs in this opinion. Hr. Curtright, who had known Clarke for thirty years, and who had been ' his family physician, previous to Hr. Park, swears to his incapacity to make a contract, and this witness declined to make a similar arrangement with him, respecting himself and property. In a short time afterwards, Clarke cried like a child, saying, the world could not make him give his property away from his children, and yet in two hours after this, he proposed to give his property to Mr. Griffin, who had accompanied Clarke to the house of witness. John Robbins confirms the testimony of the other witnesses, and states, that Clarke made the same proposition to him that Havis accepted. John J. Zachray, who knew Clarke well, swears positively to his incapacity to make a contract, on account of the unsoundness of his mind. Phillip Clements, who proves Clarke to have been eighty years old, establishes also, his mental incapacity. James Smith concurs fully with the other witnesses who were examined as to the incapacity of Clarke to make a contract.

Some four or five gentlemen of the highest respectability, residing in Greenesboro’, some of whom were present at the execution of the contract, and who saw Clarke frequently after he came to reside in Greenesboro’, and two of whom attended upon him as physicians, are of the belief that Clarke was capable of making a contract. We must say, however, and in this we are abundantly supported by the record, that the opportunity for judging of the state and condition of Clarke’s mind was much better on the part of the witnesses for the complainant, than those offered to support the deed, and the discrepancy between them may be accounted for in this way. In this and all similar cases, it is the peculiar province of the jury to judge of the weight of the testimony.

When we take into consideration the fact, that the price paid for this property was grossly inadequate, according to • the proof, that this imbecile old man was well taken care of by his children ; from whose custody he was removed by a stranger; that two special juries of the county have concurred in pronouncing against this transaction, and that his Honor, the presiding Judge, has refused to disturb their finding, we cannot doubt that it becomes our duty to acquiesce in the judgment of the Court refusing to grant the motion for a new trial in this case.

Judgment affirmed.