20 Ga. 50 | Ga. | 1856
By the Court.
delivering the opinion.
Did the evidence warrant the finding of any verdict against the plaintiff in error ? This is the first question.
And this depends on the question, whether the evidence took the action out of the Statute of Limitations.
The witnesses for Addison, the plaintiff in the action, swore that Mitchell, .the defendant in the action, said that the pork was credited on the note on which the younger fi. fa. was founded; and that if it was not, he would pay said plaintiff for it.
The note was produced, and there was no such credit on it.
This evidence, if trustworthy, was sufficient to take the action out of the Statute of Limitations. And it was for the Jury to say whether it was trustworthy or not. It was evidence, and they might have believed it. Therefore, we cannot say that there was no evidence to take the case out of the Statute of Limitations ;• and therefore, we cannot say that the first ground of error is true — that the evidence did not warrant the finding of any verdict against the defendant in the action.
Did the evidence warrant the finding of any interest, or if
And this depends upon whether the evidence was such that ;the Jury might be justified in concluding from it that the demand sued on was a liquidated one.
A demand is a liquidated one, if the amount of it has been astertained — settled—by the agreement of the parties to it, or otherwise.
Did the evidence authorize the Jury to infer that these parties had agreed upon the amount of the demand sued for in this action ?
The evidence shows that they had made some agreement with respect to the pork, and the credit of it on the note. The defendant in the action admitted that the contract was for five hundred pounds of pork. The plaintiff said he had paid the defendant over 500 pounds of pork, which was to he .credited on a note which defendant then held against him.
Might not the Jury infer from this that the agreement was, that the pork was to be rated at some fixed price ? How else would they know what amount to enter, as a credit? We think they might. If they might, then the question becomes ■this: was there anything in the evidence to authorize them' ■to say what that fixed price was ? And we think there was. It appeared in the evidence, that at the time when the agreement was made, pork was worth five dollars a hundred. • The Jury might infer that the price fixed by the parties for the pork, was the value of the pork. Any other price would be' unjust to one party or the other. And it is not to be presumed that both parties would concur in a price of that sorf.
The result is, that we think the evidence to have been' such that the Jury might have inferred from it, that the demand1 sued on was a liquidated one, and also, what was the amount at which it was liquidated; (there was evidence to show the iquantity of pork paid to have been 500 pounds;) and if so,, tlion there was evidence to authorize the Jury to allow interest on the demand.
According to the terms of the agreement, the pork was to be credited on the note, say, if we please, at a quantum, valebat merely; yet, it was to be credited as of a particular time — 1840. If it had been credited at that time, it would at once have satisfied so much of the note as would have been equal to the value of it; and of course the interest on so much of the note, would have stopped at that time. That credit, then, with its consequence, the stoppage of interest on so much of the note as the credit paid off, was what, by the contract, the plaintiff in the action was entitled to. That credit he did not get — and why ? Because the defendant in ■the action failed to perform his part of the contract. A case, therefore, was made, in which the plaintiff could have gone into Equity, and compelled the defendant to perform his part of the agreement, i. e. to enter the credit as a credit of 1840. If that were done, the plaintiff would get what would be equivalent to the interest which he claims in his action.
But why should a party be driven into Equity, when he can get, in a Justice’s Court, in effect, just what he would get in Equity ? Is there any reason for it, especially in the face of the Act of 1820 ? (Cobb’s Dig. 464.) I cannot think so.
The second ground of error, then, seems to us, in like manner, not well founded.
Was the verdict too uncertain to supporfthe judgment ?
This question we have decided — and in the negative. See the case of Taylor, Sheriff, vs. Behn & Foster, (Mac. Jan'y, 1856.)
That is certain which can be made certain. It is to be presumed, that when a Jury find for a plaintiff “ principal,” they mean the principal he sues for.
. As .to the time from. which the. interest was to commence
Upon the whole, we affirm the judgment of the Court below.-
