9282 | Ga. Ct. App. | Apr 12, 1918
According to the brief of counsel for the plaintiff . in error, “the sole issue for the jury to determine was whether or not plaintiff in error was the tenant of defendant in error.” The direct, positive testimony of the agent of the plaintiff, in the lower court, was that in behalf of his principal he rented the premises to the defendant, and not to her husband, for the year in question, for 2,000 pounds of middling lint cotton, to be delivered at a certain place and on a certain date. He further testified: Mrs. Duncan, the defendant, “delivered 450 pounds of cotton there at the gin, and when the balance of the cotton was not forthcoming I went up to her house to see her. I saw her at her house and reminded her of the fact that the cotton had not come up, and that they were picking probably elsewhere; she promised me that she would get the cotton.out and send it to the gin. She never made any complaint then nor throughout the entire year that she was not renting the place. . . As far as Mr. Duncan renting this place, I did not rent to him. He was about to go into bankruptcy, and I would not have been safe, but as an accommodation or as a matter -of sympathy, I did agree to rent to his wife, and told him so on two or three occasions.” There was testimony from one MeDougal that Mrs. Duncan cultivated the land during the year for which it was sought to recover rent, and “she said she traded with Thomas J. Shackelford [the agent of the plaintiff, who testified he had rented the land to her]. I took a noté down there for her to sign, but she did not sign it. She said she traded with Mr. Thos. J. Shackelford, and that was the excuse she gave. I took the note down there for H. N. Shackelford.” The defendant denied this, and testified: that her husband rented the place, and
From the foregoing statement of the evidence it is apparent that there was a decided conflict between the testimony of T. J. Shackelford on the one hand, and the testimony of the defendant and her husband on the other. Even if it be admitted, as contended by counsel for the plaintiff in error, that the evidence of Shackelford that he rented this property to Mrs. Duncan was a mere conclusion on his part that the contract was with her, and therefore this testimony could have, no substantial value when opposed to the direct evidence to the specific effect that the contract was made with Duncan, and not with his wife, according to the testimony of Duncan, and conceding further that Mrs. Duncan was not present in person when the contract was made, it might have been inferred by the jury (if they accepted the testimony for the plaintiff as true) that Shackelford dealt with Duncan as agent for his wife, and through him made the- contract of rental with Mrs. Duncan, which was afterwards expressly ratified by her in the conversation to which Shackelford testified, and was further ratified -by the payment by her of a part of the rent contract. It is not intended here to intimate what was in fact proved, or what inferences the jury should have drawn, but merely to indicate what inferences might legitimately have been drawn from the testimony. Aside from this, however, it does not, from anything
^Shackelford, the agent of the plaintiff, and had assigned this fact alone as a reason for not signing the note which he presented for execution, by its terms made payable to H. N. 'Shackelford. All this, however, but serves to illustrate the fact that the evidence was conflicting on the vital point in the case, and completely demonstrates the impossibility for this court to reverse the judgment of the trial .court in granting a first new trial, unless the unbroken line of precedent's of the Supreme Court and of this court be violated, since it can not reasonably be contended that the evidence, taken as a whole, demanded the verdict.
Judgment affirmed.