83 Ga. 626 | Ga. | 1889
In 1874, the State, as owner of the "Western & Atlantic railroad, brought suit in the name of the governor, against the Georgia Railroad & Banking Company, for $3,263.40 principal, besides interest, alleged
1. It thus appears that in order to reach and decide the merits of the present controversy it is indispensable that it be ascertained whether, assuming the contract with the consignee to have’ been without a time limit, the State road acted with or without the consent of the Georgia road in omitting to impose that limit. If the State road, in proposing a contract to the Georgia road and inviting its consent thereto, named terms including a time limit, and then closed a< contract with the consignee comprehending no such limit, the Georgia road would clearly have the right to stand, relatively to the State road, on the same footing as if the time limit agreed upon between the two roads had been put into the contract made by the State road with the consignee. To meet this aspect of the case, counsel for the Georgia road requested the court to charge the jury (10th ground of the motion for a new trial) as follows’: “Even though the jury should find under the evidence that the "W. &. A. R. R. made the contract alleged and so agreed or promised as to bind itself to transport the 4,300 tons of iron and spikes, without limit in time to the summer and autumn, still, if as between them and the officers of the Georgia Railroad Company the understanding was that the transportation of iron was to take place during the summer and autumn, and the Georgia Railroad Company assented to the rate upon such under
2. The request to charge set out in the 18th ground of the motion should also have been acceded to; that is, “if the contract be alleged to have occurred by letter or telegram, and if in any or either of the communications on the subject, the limitation or condition was inserted, it would not be necessary to repeat or again
3. Both these roads actually treated the agreement between themselves, and also that made with the consignee, as having expired with the autumn of 1869, or with the month of November in that year. And the suggestion to change from a lower to a higher rate came from the State road. It was in the acting on this suggestion that the alleged overcharges now- sought to be recovered were assessed. Both roads assessed at the increased rate for all transportation of the iron effected after November, 1869. On this state of facts, one or more of the material telegrams relative to the contract being lost, the charge requested, as set out in the 19th ground of the motion, should have been given, to wit, that “any testimony as to how the parties themselves interpreted the contract, and how they acted on it and treated it at the time, and whilst the business was in progress, may be looked to along with other evidence to ascertain what the true terms of the contract or contracts were, and what was the true meaning of the same.”
4. The 39th ground of the motion complains that a part of the recovery was for overcharges upon iron which went to Nome. Some of the evidence, such as the receipt given by Barney, tends to show that this was true, whilst other parts of the evidence, such as the credit entered on the books of the State road to the Dalton agency under date of December 31st, 1870, would seem to indicate that the Georgia railroad’s proportion of the overcharges on iron which went to Dalton was remitted by the State road up to the amount declared for and found by the jury. As the declaration now stands, any recovery had upon it should be limited to overcharges on the Dalton iron, and if overcharges on the Nome iron were also included in the
5. Under the evidence in the record, any allowance, of interest prior to demand would be improper. The overcharges complained of, if made wrongfully by the Geoi’gia road, were not only with the consent but at the suggestion of the State road; and so far as appears, the Georgia road was entirely free from any fraud or fault relatively to the State road in making of them and taking credit for them in current settlements. The most that can be said is that these credits were given and taken by mutual mistake, and the general rule touching money paid by mistake is that, prior to demand by suit or otherwise, the recipient is in no default, and therefore is not chargeable with interest. Jacobs v. Adams, 1 Dall. 52 ; Simmons v. Walter, 1 McCord, 97; Brown v. Campbell, 1 Serg. & R. 176; King v. Diehl, 9 Ib. 409; 2 Story Contracts (by Bigelow), §1491; Sillick v. French (notes), 1 Am. L. Cases, 521. See also, for analogous cases, Boston, etc. v. Boston, 4 Metc. 181; Wood v. Gray, 5 B. Mon. 92; Sharp v. Pike, Id. 155. In Riggins v. Brown, 12 Ga. 271 (h. n. 8), a surety who without knowing it had been discharged by the creditor, and after such discharge had paid the debt, was allowed, in reclaiming the money, to recover interest upon it. There the act of discharge was one in which the surety did not participate, and of which the creditor had knowledge and the surety was ignorant. The creditor could therefore be considered as in fault for receiving the money without making the surety aware that he, the creditor, had done an act which relieved the surety .from obligation to pay the debt. We see nothing in the evidence before us to make that case applicable to the present one on the element of interest. Whether, under the evidence in
6. The court charged the jury (45th ground of the motion for a new trial) that “prima facie evidence is that which is. to be taken as true until the contrary is shown by other evidence.” "We think a more accurate definition or description would be that it is such evidence as in judgment of law is sufficient, and if not rehutted, remains sufficient. U. S. v. Wiggins, 14 Peters, 334; Lilienthal v. U. S., 97 U. S. 268; Emmons v. Westfield Bank, 97 Mass. 230; Anderson v. The State, 8 Heis. 14. Starkie (1 Stark. Ev. 544) says, “prima facie evidence is that which, not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favor that it must prevail if it be accredited by the jury, unless it be rebutted or the contrary proved.”
7. By the code, §976, the books of the W. & A. railroad were made prima facie evidence of what they contain pertinent to the points in issue. The contents of some of these books were introduced in evidence by the State on the trial of the present case. Whilst we think they were admissible, notwithstanding the lease of the road made by the State to other parties had taken effect when somé of the entries in the books were made, yet considering that the entries were made somewhat irregularly, and after the cessation of active business by the State as a carrier, and that the person or persons who made the entries, or some of them, were not those who had charge of the books when such active business was in progress, the request set out in the 27th ground of the motion should have been given in charge to the jury, namely, that “plaintiff’s books were introduced as only prima facie evidence, and were
¥e have selected from the almost half a hundred grounds in the motion for a new trial all which we deem material to be discussed separately and specifically in this opinion. Por various reasons, or rather for numerous reasons, some of them applying to one ground and some to another, we think that between thirty and forty of the grounds are free from error. Indeed, all set forth in the motion may be considered as overruled by us, except those in which we have pointed out error in the foregoing part of this opinion. The movant, however, was entitled to a new trial, and the court erred in not granting the same. Judgment reversed.