3274 | Ga. Ct. App. | Dec 19, 1911
Lead Opinion
(After stating the foregoing facts.)
I. The exception relating to exclusion of the evidence of settlement and the giving of a due-bill by Fletcher to Young, and the charge of the court relating to the effect of this evidence, may be disposed of together. If the evidence was admissible, clearly the charge was pertinent and correct. Unquestionably the evidence was admissible. In fact, the circumstance which tended to prove that the decedent Young, intestate of the defendants, did not owe the plaintiff, Fletcher, anything was admissible in -support of the answer of payment. The fact that Fletcher and Young had a settlement of their matters, and as a result of this settlement Fletcher gave his due-bill or promissory note to Young, was a circumstance of more or less probative value- that Young did not owe Fletcher anything at that time; for, if he had been indebted to Fletcher, tliere would have been no reason why Fletcher should have given him his clue-bill or promissory note, and if there was a settlement between them, it is fair to presume that all mutual accounts and claims would have then been made and adjusted, and a balance struck between them. That this in fact was done in the settlement, and the balance was in favor of Young, is indicated by the fact that Fletcher did give his due-bill or promissory note.
As early as in the case of Mills v. Mercer, Dudley’s Reports, 158, it was held that the execution of a promissory note is evidence in law of a full settlement of accounts up to the date thereof, except such as were especially excepted at the time of the settlement; and the excerpt excepted to is in the very language of this opinion. Of course, the presumption was not conclusive. The court correctly stated that it was an inference of fact, and subject to be rebutted by evidence.
In Baldwin v. Walden, 30 Ga. 829, it was held that a credit on
It is not objected here that these excerpts from the charge did not state a correct principle of law, but they are objected to for the alleged reason that they do not illustrate any issue in -the case. It seems to us that they do illustrate the only issue in the case, to wit, whether or not Young owed Fletcher the debt for which the administrators were being sued; it being contended that if Young did in fact owe this debt to Fletcher, and it was in existence at the time of the proved settlement between them, it was either included in the settlement, or did not exist, because not then referred to by Fletcher; the witness testifying that he was present when the settlement was made, and no reference was made to this debt by Fletcher to Young. In Norton v. Aiken, 134 Ga. 24 (67 S.E. 425" court="Ga." date_filed="1910-02-17" href="https://app.midpage.ai/document/norton-v-aiken-5577092?utm_source=webapp" opinion_id="5577092">67 S. E. 425), it is said that “any circumstance which tends to make the proposition of payment more or less probable may be considered by the jury.” Certainly the failure of Fletcher to mention this debt to Young at the .time of the settlement was a circumstance which tended to establish the fact that Young did not owe Fletcher the debt.
It is insisted by learned counsel for the plaintiff that the testimony as to this settlement and the giving of this due-bill or note was not relevant, and the charge of the court, relating thereto, was not pertinent, because the settlement was as to different matters between Fletcher and Young than that growing out of his right of contribution as a cosurety for Harris. This may affect the probative weight or value of the testimony, but does not destroy its relevancy, or make improper the charge referred to. Of course, if the due-bill given by Fletcher to Young had been given expressly in reference to a claim of Fletcher against Young, growing out of his relation of cosurety on the note given by Harris to the bank and its payment by Fletcher, it would have been conclusive against Fletcher. But it was a circumstance, in any event, which tended to raise a presumption against him that Young did not owe him anything at the time of the settlement; for it must be conceded that, being an insolvent man, according to the evidence, Fletcher would hardly have been giving Ms due-bill or ■ promissory note
2. In the ruling of the court in admitting in- evidence the general execution docket, showing the entry of the executions against Fletcher,.there was probably error. The evidence was secondary; the best evidence being an exemplified copy of these entries. This error, however, was not material, and hardly contributed to the verdict. The existence of the unpaid executions was only a slight circumstance against the plaintiff; and, irrespective .of this evidence, in our opinion the verdict is amply supported.
3. There was no error in the charge of the court that payment might be established by facts or circumstances, without fixing the time or place of payment; the question of payment being one for the jury to determine from the facts in the case. It is the fact of payment, and not the timé or place of the payment, that is the essential fact to be proved; and if the evidence established the fact of payment, it is wholly immaterial that it did not go further and prove the place and time when the payment was actually made. Proof of the time and place of payment might render the evidence of payment stronger, but certainly the failure to prove the time and place could not destroy the probative value of the proof that payment was in fact made.
4. We think there was sufficient evidence to warrant the jury in coming to the conclusion that if Young, the intestate of the defendants, ever owed Fletcher the $1,000, he paid the debt during his lifetime. Fletcher alleges that he paid this note on which Young was cosurety to the bank in 1902. For six years thereafter he made no claim upon Young for contribution, although' during that time Young was entirely solvent and lived near Fletcher, and during that time Fletcher had had a settlement with Young, and had given Young his due-bill for $440. During this time, also, Young was sick for 15 months, and Branch, one of the administrators, attended to his business; and yet Fletcher, with no written evidence that he had paid the surety debt of Harris in his possession (for he testified that he had lost the note whichhe had paid), did not say one word as to the existence of this debt,
Judgment affirmed.
Concurrence Opinion
concurring specially. I doubt that the presumption or inference of settlement of previous differences arising from the giving of a note or due-bill is as broad as the opinion of the Chief Judge indicates, but, as applied to the facts of the present case, the charge was not misleading ox erroneous. Besides, it should not be overlooked that the alleged indebtedness for contribution had become barred by the statute of limitations, before the death of the decedent, even if it had not been discharged. Though the statute of limitations was not pleaded, the very fact of the lapse of time, without claim of indebtedness, greatly enhances the inference arising from the giving of the due-bill. 1
Judge Bussell authorizes me to state that he concurs with these views.