106 Ga. 486 | Ga. | 1899
Dwelle & Daniel brought suit against Mrs. Black-wood for sixty dollars, besides interest, alleged to be due on a promissory note. The note was for the principal sum of $261.48, with interest from maturity at eight per cent, per annum, was dated April 20, and became due November 1, 1897. The defendant answered, setting up as a defense, that she had fully paid off and discharged the note by sending to the plaintiffs $200 by express, one bale of cotton worth net $56.30, and money-order for $5.18. At the trial plaintiffs introduced the note and also copy of the contract between Dwelle & Daniel and Mrs. Blackwood, in which it was recited that, in consideration of cash and supplies represented by the promissory note, Mrs. B. agreed to deliver to D. & D. at Savannah, for sale for her account, at least one bale of sea-island cotton for each ten dollars that they had advanced to her; and in case of default, she agreed to pay in cash the above note at maturity, with $2.50 per bale as liquidated damages mutually agreed upon, for non-fulfillment of the contract, but not as a penalty, for such number of bales of cotton as she might fail to deliver. It was recited in the instrument, that the $2.50 per bale was no part of the interest on the sum for which she had given her note, but was intended to compensate D. & D. for the expenses that they are put to, in providing warehouse accommodation, etc., for handling cotton, and that all cotton, etc., that she might deliver for sale should at their option be first applied to the payment of damages, and that the note should remain in full force until settlement is made and the note surrendered. There was also a stipulation to pay attorney’s fees and cost. Parol testimony was admitted, showing the payments averred in the plea, that the interest at eight per cent, on the sum borrowed was
2. It is further complained, that the court erred in ruling that the defendant was entitled to the opening and conclusion of the argumént of the case. In connection with this ground, it is stated that at the opening of the case defendant’s counsel assumed the burden and claimed the right to open and conclude the argument; that this claim was assented to by the court and not objected to by plaintiffs’ counsel. It therefore seems that no point was made as to the right of defendant’s counsel to open and conclude, and no objection was made to the allowance by the court of such claim. This being true, whether the court erred or did not err in allowing the defend
3. It is further complained that the verdict of the jury is contrary to the law and evidence in the case, because, if all sums for which the defendant claims a credit should be applied to the note sued on, there would be a balance remaining due to the plaintiffs. On examination we find that the promissory note for the amount of $261.48 was to become due on the 1st day of November, 1897, and that after that date the principal of the note bore interest at the rate of 8 per cent, per annum. In the plea the defendant avers that she sent the plaintiffs $206 to be credited on the note. By reference to the statement of account introduced in evidence, it is shown that this $200 was received on November 3. By the same statement it was also shown that the net proceeds of one bale of cotton shipped was received by plaintiffs on December 20, both in the year 1897; and that on the 10th day of January, 1898, the plaintiffs received by express the additional sum of $5.18. These sums remitted aggregate the exact principal of the note, but under its stipulations plaintiffs are, by reason of accrued interest, clearly entitled to a small sum due on the note, for which amount they should have had a verdict. Other than this, we can not say that the verdict of the jury was contrary to the evidence in the case. The charges of the court complained of contain no material error, and were pertinent to the issues raised. The verdict of the jury having been rendered for the defendant, and the evidence showing that some amount was due on the note sued on, it must for this reason be set aside.
Judgment reversed.