55 Ga. 298 | Ga. | 1875
J. W. Davis & Company, of Louisville, Kentucky, sold to Fox, a merchant in Atlanta, a lot of furniture, which Fox directed to be shipped to Ross, at Talladega, Alabama. A portion of the goods appears from the evidence to have been soshipped under this ordinary purchase; but before all were shipped, the sellers, at Louisville, became uneasy, and refused to ship more unless Fox would agree to consider them sent to him under consignment, and be responsible for them as bailee. This was agreed to, and there is some conflict in the evidence whether the agreement embraced all the furniture sold or only the part shipped to Ross after the new agreement. We presume from their verdict that the jury thought the agreement embraced all the furniture, and we are not disposed to interfere with their finding in this particular. The agent of Davis & Company demanded these goods or their
Pending the time of the commitment of Fox and thé session of the superior court, Fox and tbe creditors to whom he had transferred the mortgage, arranged with Davis & Company to let them into the mortgage on equal terms, other goods besides those shipped to Ross by Davis & Company being embraced in the mortgage; but it was expressly stipulated that this agreement should not affect the prosecution of Fox nor this suit for malicious prosecution.
On the'whole, we think that the ends of justice will better be met by a new trial. We do not mean to express the opinion that there should be damages from the facts proven and disclosed in the .record; certainly we do not mean to say that they should be heavy; but we think the plaintiff entitled to have the jury pass upon the facts in the light of the law as we have explained it; and with the law thus charged, as they shall find for or against tlie plaintiff, both he and the defendants must abide the verdict.
Judgment reversed.