68 Ga. 534 | Ga. | 1882
E. E. Field, commenced his action of complainant on account against the intestate of plaintiff in error,in 1870,to recover certain sums of money, which he alleged to be due him, first, on account of sales of certain lands which the parties had purchased at sheriff’s sale, and on the agreement that they were, thereafter, to be sold privately and the proceeds divided pro rata between them. Second, to recover also the pro rata share of the plaintiff below in certain amounts of insurance which Tumlin had collected, arising from the insurance, and burning of certain mill property owned by the parties jointly, and which insurance money had never been accounted for.
To this action Tumlin pleaded, first, the general issue ; second, that plaintiff had agreed that his pro rata share of the insurance money should be paid to J. M. Field, a brother of plaintiff, to whom the property sold at sheriff’s sale had formerly belonged, and that in conformity with such agreement, and by consent of plaintiff, there had been payment and settlement had as to said pro rata share of said insurance money claimed by Tumlin in his life, and his administrator since his death with J. M. Field. There was also filed a plea of settlement and accord and satisfaction, as to all the matters embraced in said suit, since the same was commenced between plaintiff and defendant, which was plead in bar to any recovery.
On the trial of the case, the jury returned a verdict for
The defendant below made a motion for a new trial on various grounds, as are set forth in the record, which was overruled by the court, and he excepted.
It is evident, from the evidence on the trial, that the verdict of the jury was a recovery alone on the item of “insurance money” collected by Tumlin. He had collected $13,000.00 insurance, one-fourth of which plaintiff below claimed, which was $3,250.00. One thousand of this amount Tumlin had paid, hence the verdict was for balance, $2,250.00, with interest.
It is manifest that the jury believed from the evidence that since suit was brought-there had been a settlement between the plaintiff and defendant, as to the proceeds of the sales of lands made by Tumlin to Borders and Poullain, and a payment in money by Tumlin to Fields, and a division of the notes given by Borders for his purchase of the land, between the parties, so as to leave wholly out of their consideration this item of the account sued on.
It appears from the record this suit had been pending for some time between the parties, and that by agreement the whole suit was referred for settlement and award to 'the respective counsel of plaintiff and defendant, with the right to choose an umpire; that various meetings were had, calculations made, and after several days,' a result arrived at by the parties, which met their approval. It further appears that . on the result reached, Tumlin paid Fields several thousand dollars in money, and that Borders, the purchaser of the.last land sold, divided his notes held by Tumlin for said purchase, and executed them anew, giving to Fields his pro rata share of notes, and to Tumlin his proportion ; that when this was done Tumlin demanded a receipt from Fields, which he declined giving, and as a reason alleged there might be a mistake.
It further appears that the referees made no written
In the third cross-interrogatory he was asked," if you testify as to any conclusion in reply to the sixth direct interrogatory, how do you know it?” He answered, “ both parties said there was a conclusion arrived at, and so expressed themselves, and changed my notes.”
With the light thrown on that portion of the answer to the sixth interrogatory (ruled out by the court) by the answer to the third cross-interrogatory, we are satisfied the court erred in ruling out the answer to the sixth direct interrogatory included in the brackets.
We are not prepared to say the words of the witness ruled out may not have been admissible even without the aid of the explanation, as offered in the answer to the third cross interrogatory, though we do not pass on this question. In 27 Ga., 207, this court said, “ It was my .understanding,” when used by a witness, means ordinarily, “ his knowledge and recollection of facts.” See, also, 10
If he submitted his suit to an arbitration in pais, and accepts the result of the award, he would be bound by his acceptance, and not be permitted to open the matter again. Bigelow on Estoppel, 515; 32 Ala., 480; 19 Pick., 300.
In view of the whole facts in the record — the excluding from the jury the full answer of Borders to the sixth interrogatory in his depositions, and the further fact that Tumlin’s estate is made to respond for the full amount of the pro rata share of this insurance money claimed by plaintiff, without regard to the cost and expenses incurred by Tumlin in collecting the same, and as this motion for' a new trial was not passed upon by the judge who presided at said trial, we feel that the ends of justice will behest subserved by reversing the judgment of the court, below, and ordering a new trial.
Judgment reversed.