11 Ga. 317 | Ga. | 1852
By the Court.
delivering the opinion.
The complainant admits in his bill that that was paid, and he is estoped by that admission ; he could not aver against it; he could introduce no evidence to prove that it was not paid. He is shut in to the case which he makes. Peacock vs. Terry, 9 Ga. R. 149, 150. The defendant on the record, who is the administrator upon the estate of the purchaser of that interest, admits that it was paid as charged in the Mil. Upon the pleadings therefore, it is the judgment of the law, that that matter wras not in issue, and could not be considered by the Court or the Jury. The conclusion of the law is before the admission of both parties on the record, that the price of the complainant’s interest in the mill property, was paid to him by the defendant’s intestate, when he bought it in 1841.
The only question made for the Jury by the pleadings, was this: is the estate of the deceased partner indebted to the complainant anything on account of the partnership profits, which had been made prior to its dissolution by the sale of the mill interest in 1841. That was the issue made — to that issue alone can the evidencebe applied, and that was the issue upon which the verclict was rendered; it was rendered in favor of the defendant. Our duty is now to enquire whether there was any evidence to authorize that verdict ? If there was none, the re-hearing ought to have been granted by the presiding Judge. The only evidence before the Jury besides the answers (and that contained none except as before stated) was a letter addressed by the complainant to the intestate of the defendant, in 1847, and his response thereto. In his letter, the complainant tells his brother (the intestate of the defendant, he being then in life) that he does not, upon settlement, owe him one atollar, but that on the contrary, he owes him very considerable. “ You yet owe me (writes the complainant farther) my mill interest — you owe me for a great deal of hauling — you owe me some loaned money — you owe me for moving your
In the letter of the complainant, he claims that his brother is indebted to him, and specifies that he owes him on account of his mill interest. Answering this letter, the intestate of the defendant tells him to send his notes and accounts to JR. G. O’Meal, and he will pay them— which would seem to imply indebtedness. He says then, that he was unapprised that he owed the complainant anything, until notified by him. Whilst this statement implies ignorance of indebtedness, before being notified, it concedes it after he was notified. He then, contradicting his previous statement, that he-was unapprised that he owed the complainant anything, says, that he was apprised of the work whicli he had done — of his mill interest, and some hauling, for which he says it will afford him pleasure to settle. In the postscript, he makes a distinct admission, that he has in his hands, belonging to the complainant, about twenty-five hundied dollars, with in
The defendant’s intestate, in the postscript, does not speak of the $2500, as a sum due for a purchase, as would be natural if he referred to the purchase, but as a sum in hand belonging to the claimant, which is also a natural form of expression, where the sum is derived from property of another. The fact that he admits interest upon it to be due since the sale of the one-half 1 of the mills, is laid hold of to prove that the party referred to a sum due on that purchase. But it was at that time that he took in hand the partnership effects, and may very well have concluded in his own mind, that complainant’s share of them would bear interest from that time, and therefore, so expressed himself.
Let the judgment below be reversed.