75 Ga. 715 | Ga. | 1885
This is an action commenced by attachment, brought by Frick & Company against G. S. Hooks, on certain promissory notes. The jury returned a verdict for plaintiffs, and defendant being denied a new trial, excepted, and assigned error on the grounds'alleged in the motion therefor.
1. There was no error in the charge of the court that the jury was obliged to render a verdict for the plaintiffs, because there was no evidence before the jury but the promissory notes. It is no expression- or intimation of opinion on evidence, in the sense of the statute, which prohibits an expression or intimation thereon. That prohibition applies to evidence pro and con, conflict of testimony, but not to a case where there is no evidence but the promissory notes, and no plea of non est factum or contradictory testimony. In such a case, it is the duty of the court to tell the jury what the law requires them to do on the undisputed facts before them.
2. So that the question is, did the court err in ruling out the testimony offered by the defendant ?
One Cox sold an engine for Frick & Company, being an agent to sell. Another agent took the notes from the defendant, and they are payable to Frick & Company. Cox endorsed them. The defendant sent to Cox some car loads of shingles to sell and pay the notes off, but the notes were never paid and no credit is on them. Cox, it seems, treated all parties, especially the defendant, who seemed to trust him as his agent to sell' shingles and pay the notes, very badly. The court ruled out the evidence about the shingles and the directions thereabout, because no part of the proceeds ever went to pay these notes, which were not paya ble to Cox, but to the plaintiffs. The court also ruled out the sayings of Cox to defendant’s counsel, who went to see him about the notes, shingles, etc., because he was a mere agent to sell, and that agency was long before closed up.
3. Hence, while it was unnecessary for the court to charge the jury at all on the excluded evidence, yet he told them the law when he said, “ There is no evidence to show that Frick & Company received the payment; it is true Hooks did attempt to pay the note, but he paid it to a person not authorized to receive it.” 54 Ga., 52.
4. There is nothing in the newly discovered evidence. It could not shake the verdict. If Cox had possession of the notes at the time alleged, it is certain he put no credit on them, and nothing he said would be admissible, or if admitted, it would only show what the notes contradicted on their face by no payment being on them.
5. The court said in regard to the last ground that he charged the jury before he knew counsel wished to speak, supposing the case submitted without argument, but then allowed him to speak. The only error we see is that he allowed speaking at all to the jury on the promissory notes, which were all the evidence in, and which would demand the verdict against all the eloquence of all tongues.
Judgment affirmed.
