Lowery v. Davidson

44 Ga. 38 | Ga. | 1871

Warner, Judge.

This was an action of trover brought by the plaintiffs against the defendant to recover the value of twenty-eight bales of cotton. The plaintiffs sued as the executor and ex-executrix of William Davidson, who died in the State of South Carolina. The plaintiffs had filed in the Clerk’s office of the Superior Court an exemplification from the record of the Court of Probate of South Carolina, showing the probate of the will of the testator, and the appointment of the plaintiffs as his executors in that State, and relied on the same as evidence of their right and title to maintain their action against the defendant in the Courts of this State, under the provisions of the 2414th section of the Code. This record was objected to on he ground that it was not certified to by a Clerk. The record was certified to by the Judge of Probate, in which he states that, by the law of that State, there is no Clerk of his Court, that in his official capacity as Judge, he is also ex offieio, in the law, the sole Clerk thereof, and that this testimonial and the foregoing attestation are in due form of law. In our judgment, this record was properly authenticated according to the law of the State of the plaintiffs’ domicil, so as to entitle them to sue in the Courts of this State, under the provisions of the Code before cited, as exec-tors of the deceased testator. On the trial of the case the jury found a verdict for the plaintiffs, and a motion was made for a new trial, which was overruled by the Court, and the defendant excepted. There was no error in admitting the evidence in explanation of the indorsement on the cotton receipts which made the cotton subject to the demand of Davidson, or to his order. The indorsement on the back of the receipts is in the following words: “ Deliver to T. N. Johnson, Esq., or order. W. Davidson.” The evidence of Johnson shows that) the indorsements on the back of the cotton receipts were only intended to give him authority as the agent of Davidson to receive the cotton; that he had no personal interest in it, and acted only as agent. This did not vest the title to the cotton in Johnson as against Davidson, for whom he was acting merely as the agent, or as against his legal representatives. There was no error in rejecting the books of the defendant in evidence for the purpose of showing that the receipts for the cotton were given to Davidson, instead of to Davis, by mistake, under the pleadings and evidence in this case. If a defendant in a Court of law seeks to avoid his contract on the ground of mistake, he must, by his pleadings, allege the grounds of the mistake as fully in a Court of law as he is required to do in a Court of equity, so as to give the adverse party notice, before he can introduce evidence of such mistake, in order to avoid the contract on that ground. There is no allegation in the defendant’s plea that the contract set forth in the receipts was the result of either accident or mistake, so as to enable him to avail himself of that equitable ground of defense in a Court of law. Besides, it is not very apparent how the defendant’s books, containing his own acts, would conduce to show his mistake in giving the receipts for the cotton to Davidson. It may may be true that the defendant’s books show that the storage on the cotton was paid by Davis, which might have been done as the agent of Davidson, and the fact that the receipts given to Davis by the defendant for the storage are now found in the hands of Davidson’s executors, would seem to look that way, although the defendant makes the discovery of that fact a ground for a new trial, as being newly discovered evidence. In view of the facts of this case, as disclosed by the record, we are unable to find any legal ground on which to reverse the judgment of the Court below.

Let the judgment of the Court below be affirmed.