15 Ga. 258 | Ga. | 1854
By the Court.
delivering the opinion.
This was an action of assumpsit, brought by Wm. B. Pryor? as an attorney at law, to recover- five hundred dollars o'f Aaron Formby, the defendant, as a fee for services to be rendered by the plaintiff, for getting George W. Formby, the son -of the defendant, out of the penitentiary, where he was imprisoned for the offence of larceny.
On the trial, the plaintiff submitted his evidence, in support of his declaration ; and I regret exceedingly, that it becomes indispensably necessary to recapitulate the whole of it, as two of the three' exceptions, grow out of the nature and extent of the proof. William Allman swore, that he was applied to by the plaintiff, at the house of the defendant, for an affidavit, to present to the Governor of Georgia, upon an application for
Plaintiff next introduced the pardon of Eormby, by George ”W. Towns, the successor of Governor Crawford, bearing date 20th day of December, 1847, which recites on its face, that he was discharged on account of his orderly and industrious conduct, as well as by reason of the earnest representations in his behalf, by respectable citizens, that the circumstances in which he was placed, were calculated to mislead him; and that the general opinion was, that he was so mislead, and acted from no corrupt motive.
Jacob Johnson and George W. Johnson both testified, that they heard defendant say, in May or June, 1847, that ho was to'give plaintiff five hundred dollars, to get his son out of the penitentiary.
The defendant then offered rebutting proof. Mary Dobson swore, that she heard plaintiff say,, that he intended to petition for the pardon of Formby, for that he believed that he was unjustly convicted; that the old man had paid him once, to work for him; and that when he put his hand once to the plow, he never looked back; that he meant to have Washington out of the penitentiary, and that it should never cost his father another cent; and that he would rather .give the old man something than rob him in his old age, and destroy his grey hairs. She heard this about the middle of November, 1846. She farther testified, that Col. Pryor said, that he was doing what he was then doing, for the good feeling he had for the old man Form-by and the family; and that he had been paid by the old man. She did not know in what the payment consisted of. Witness is the daughter of defendant.
William G. Ray testified, that a,t the house of the defendant, early in the year 1847, and he thinks in the month of January, ef that year, he being sent for to fill -out certificates or affidavits, to be laid before the Governor, and while Col. Pryor was harnessing his horse, he heard him say, that he intended to have George W. Formby pardoned; that Fed Chandler, Thomas Tuggle and others, werp as much or more guilty than Form-by ; that they only wished to get .Formby out of the way, that they might have free access to his wife; that it was a shame for any person to be served as Formby was, on his trial; that Giles Tompkins was drunk at the time, and- made no ^effort in his behalf; and the reason that he (Pryor) made no stronger effort in his behalf was, because he saw the condition that Tompkins was in, and that the whole Coiu’t was pretty much in the same condition; that ho thought, at the time of the
Asa F. Formby testified, that he heard plaintiff say, that he ■did not intend to charge anything for his services in the matter of the pardon; and the réason he assigned was, that he had been once paid for his services. This was on the 16th day of November, 1846. Francis M. Formby testified, that about the 1st of December, 1847, plaintiff was at the house of defendant ; and said he came to get money, to bear his expenses to Milledgéville, to get George W. Formby out of the penitentiary. He said that he had been paid a good fee, for defending Wash, who had not had justice done him. Aaron Formby advanced to Col. Pryor $20 or $25, to defray the expenses of 'his trip. ‘
'" Noah Leé swore; that in'the Fall'of 1847, he had a conversation ' with ‘ plaintiff, who stated that he was going to ■ get Wash Foxmxby out of the penitentiary; that defendant had already paid hinl a good fee; and that he would not charge anything more, for'what’he was going do." This was just before plaintiff went to Millédgéville. •'
■ The defendant’having closed his testimony, the Court charged the Jury, amongst other things, ■ “ that if they believed that a contract had'been! proven between' the' parties, that the declarations of Pryor,'to third persons, after the contract was made between himself'and Formby, without consideration, saying that he would not charge defendant, was anuclum paetim”.
1st. Because the verdict was contrary to evidence, and without evidence.
2d. On account of the misdirection of the Court, in its charge to the Jury ; and,
3d. Because the Court did not, of its own motion, and' without being requested so to do, instruct the Jury, that the • agreement sought to be inforced, was against public policy, immoral and void.
As to the first ground, it is the opinion of this Court, that, so far from the verdict being without evidence, there was abundant proof to sustain it. The agreement was fully established, as well as the- services rendered, in pursuance of the plaintiff’s undertaking.
The defendant, amongst other things, pleaded, that he never did employ the plaintiff, professionally, to procure the pardon of his son. And the evidence was offered to support this pica. To establish, by the declarations of the plaintiff, himself, that he, the defendant, had made no agreement to pay him; and that he, plaintiff, did not charge him anything, or expect to recover anything from him. Instead of that, the Court treats it as an attempt to set up a new and subsequent contract, founded on no valid consideration, to annul a pre-existing debt.
Judgment reversed.
