52 Ga. 41 | Ga. | 1874
Lead Opinion
.’This was an action brought by the plaintiffs against the defendant on two drafts dated 31st August, 1867, for $3,819 24 each, one due ninety days and the other sixty days after date, drawn by the defendant on the plaintiffs, payable to their order, acceptance waived. ' To this action the defendant pleaded that said drafts were without consideration, in this, that he had purchased cotton and shipped the same to plaintiffs as commission merchants in New York; that by improper and exorbitant charges, and in failing to sell his cotton according to instructions and usage, as it was their duty to have done, they had damaged him to a larger amount than the drafts now
1. There is much evidence in the record containing an account of the dealings and transactions between the parties in relation to the shipment and sales of cottou at different times, including letters written by the respective parties to each other. When the drafts were executed by the defendant two of the plaintiffs were present, and exhibited to the defendant their account containing a detailed statement of all their transactions with him in relation to the shipments of cotton, and the sale thereof, of which the defendant had made complaint-The drafts were executed by the defendant to the plaintiffs for the amount of the account claimed to be due them after lie had examined the same, though he said to them at the time it was not right, as he states in his evidence. The Evidence of the defendant in relation to this point in the case is, that he did not acknowledge the amount to be correct. Mr. Orme, (one of the partners) said be was the Georgia member of the firm,-and had been the medium of getting up and conducting the business, and that he felt himself under censure by his partners; that he and defendant were old friends, and he had represented him as every way a suitable man to deal with, and it w.ould be a relief to him for defendant, to sign the drafts— defendant still contending the amount was unjust. Mr. Orme said if there was anything wrong about the accounts it should be corrected; defendant then said he would sign.the drafts, and told Wilson, the other partner, he would sign them, and did so. Orme and Wilson were examined as witnesses at the trial. Orme stated that he did not recollect saying to defendant that if there was anything wrong plaintiffs would correct it, did not think he said that, for he thought it was a final settlement; did not tell defendant until after he said he would sign the drafts about bis embarassment as the Georgia partner, and was glad that he would sign them. Wilson stated
2. But it is contended that notwithstanding the court may have erred in its charge to the jury, still the evidence in the record is such as to have required the jury to have found the verdict they did. That depends altogether upon the question whether the defendant had (independently of giving the drafts sued on) ratified the conduct of the plaintiffs as his factors in making sale of all the cotton shipped to them. The first shipment of cotton, seven bales, was made by defendant to plaintiffs, 27th October, 1866, with instructions to sell on arrival. This lot of cotton was not sold until 28th January, 1867. On the 16th November, 1866, plaintiffs wrote defendant asking him “ shall we sell your cotton on this market, or will you prefer -that we hold it for a better market ? If you
3. There was no error in overruling the motion to reject the answers of Wilson because the thirteenth cross-interrogatory Avas not substantially answered.
In view of the charge of the court to the jury excluding the consideration of the' defendant’s evidence in relation to Avhat AA'as the intention of the parties as to a full and final settlement of the plaintiff’s account at the time the drafts were executed, the judgment of the court beloAV should be reversed and anew trial granted.
Judgment reversed.
Concurrence Opinion
concurred as follows:
1. I concur with doubts in the judgment that the court below erred in charging that if McLendon, when he signed the drafts, knew of the sales of the cotton, and the times of the sales, then his signing the drafts with that knowledge was a recognition and adoption of the acts of plaintiffs, and he was liable for the payment of the drafts, and that if, with such knowledge, he signed and delivered the drafts, he thereby waived all defense he might have had, if any, to the accounts exhibited. Of course these doubts do not extend to the right of McLendon to claim a correction of any mistakes or errors in the charges; but of them there was no proof.
2. The effect of the refusal of McLendon to reply to the letters received from plaintiffs Avas to raise a presumption that