80 Ga. 479 | Ga. | 1888
Lead Opinion
This was an action of slander, brought by Fox against Henderson. Upon the trial in the court below, a record of another suit between the same parties was introduced in evidence by the plaintiff. The record of that suit showed that Fox sought to recover an amount which he alleged Henderson was indebted to him, growing out of their copartnership business, which had been dissolved; to which Henderson pleaded that Fox was indebted to him on account of certain amounts which Fox had collected from divers persons on behalf of the partnership, and had failed to pay over or account for; and the jury in that case found in favor of Fox, the plaintiff. The slan
We think the case of Bradley vs. Johnson, 49 Ga. 412, is in effect an adjudication of this case. Judge Warner, in his opion in that case, cites the decision of Lord Chief Justice DeGrey in the case of the Duchess of Kingston, in which the rule that governs this case is laid down. In this case, the judgment in the former case between these parties, to be conclusive, must have passed, necessarily, upon the same point in issue here. For if the judgment in that case could have been reached without the point being directly and necessarily passed upon, the judgment is not conclusive as to that point. If the judgment introduced by the defendant in this case could have been reached without necessarily passing upon the question of whether this man’s conduct was dishonest or not, it was not an adjudication as to that. The ruling of the court below on this point was therefore erroneous.
Judgment reversed.
Concurrence Opinion
concurring.
What is now ruled in this case does not involve the position that a partner may steal from the partnership. That question is not involved, we think; because whether this be a plea of justification, strictly, or whether it be literally supported or not, the fact, if true, that Fox fraudulently misappropriated the partnership assets would go to illustrate what Henderson meant when he said he was a thief, and if it would not justify, it might at least palliate. To take partnership effects with a corrupt intent, although it may not be larceny, is to act as a thief. If a thief is one who has committed a larceny, and no other, proving this matter would not support the plea fully; but it is relevant testimony in the case; and the judge’s error in excluding it on the theory of estoppel is what we reverse, —excluding it in effect; for while he admitted the evidence, he charged that the former adjudication might deprive the party of its benefit.