Rawson v. McJunkins

27 Ga. 432 | Ga. | 1859

By the Court.

Benning J.

delivering the opinion.

Were any of the grounds of the motion for a new trial good?

[1.] The first ground was the charge of the Court. That charge we think, was right. The assignee of a judgment, holds it subject to all the defences to which, the plaintiff in. it, held it subject. Such is the plain import of the statute Pr. Dig., 465. And so, it has been held by this Court, Colquitt vs. Bonner, 2 Kelly, 155.

The second ground was, that the verdict was, “ decidedly against the weight of evidence.”

A great question in the case was, whether the sum borrowed, $1,600, was borrowed by Prim and McJunkins jointly — Prim receiving of it, $1,200, and McJunkins $400; or whether, thesum was borrowed by Prim separately — he receiving of it, the whole $1,600, and afterwards, himself lending @400, to McJunkins. It seems clear, that McJunkins obtained @400, of the @1,600, one way, or, the other.

One of these two ways tlieh being the way in which he obtained the @400.; the question is whether a verdict involving the assumption — that the last was the way, was “decidedly against the weight of the evidence.”

This question depends mainly, upon the import of the testimony of Prim, and that of his son. Prim, the father, was examined by interrogatories twice. On his first examination, what he stated, was this. “"We signed the note jointly, but I received all the money, and applied it to my own use, the understanding between McJunkins and myself, was, that he was to be responsible for me to Evans, for the payment of said debt.” A verdict assuming that the last way was the one, would not be against this statement of Prim’s, but would be supported by the statement.

But what Prim, on his second examination, said, was this. “That he and complainant did borrow money of Sterling Evans.” “ Complainant got four hundred dollars. Complainant has paid his share of the debt. The understanding was, at the time the money was borrowed, that complainant was to get four hundred dollars, and witness twelve hundred .dollars. He does not now owe any part of the money still due on the fi. fa. obtained by said Evans, on said debt. According to his understanding complainant did owe four hundred dollars, and that he paid it.”

What Prim, the father, thus states, Prim, the son, to some extent, corroborates. I; says, in substance, that he heard his father and McJunkins agree to borrow the money, and the agreement was this ; they were to borrow the money jointly, and that his father was to have if 1,200 of it, and McJunkins @400. This conversation however, took place before the borrowing. This witness also says, that he recollects, that his father, in his first depositions, stated, that “ they were jointly interested.” Those depositions contain no such statement of his father. This witness further says, that Mc-Junkins paid the $400 which he got, to Prim.

Now the question is, can thig last testimony of the father, and this testimony of the son, be reconciled with the first testimony of the father; or, if they cannot, were the jury bound to accept them, in preference to that?

An agreement between Prim and McJunkins, that the two should on their joint note, borrow #1,600, of which McJunkins should take $400, and Prim $1,200, differs so little, in aspect and practical effect, from an agreement between the two, that one of them, Prim, should on their joint note borrow the $1,600, and out of it, himself let McJunkins have #400 — that an ordinary person would run some risk of confounding the one with the other,and, therefore, of stating the one, when he means the other. That the witnesses meant to state the same thing, all the time, and, that that thing was, that Prim got the $1,600 from the lender, and McJunkins got the #400 from Prim, is pretty strongly to he inferred, from this, that McJunkins paid the $400, not to Evans, bat to Prim. Why should McJunkins pay the $400, to Prim, uuless he owed it to Prirn, and how could he have owed it to Prim, unless he had borrowed it from Prim, and not from Evans.

We, then, are not prepared to say, that it was impossible for the jury to reconcile this evidence.

But even if we were, we are not prepared to say, that the jury were bound to accept the last testimony of the father, and the testimony of the son, in preference to the first testimony of the father.

The first testimony is strongly confirmed by a fact, which seems to be undoubted, the fact to which I have just referred, that McJunkins paid the #400 to Prim, not to Evans.

That testimony is also confirmed by the conduct both of Prim and of McJunkins, in respect to they?./». Prim was the one, who manifested all the interest in the/./». It was he that paid usury,for indulgence; it was he that wished, and offered, to pay up the whole fi. fa. oil the terms of a relinquishment of the usury. MeJunkins did nothing — said nothing.

Then, Prim, the son, says, that he recollects a statement of importance, as having been made by bis father, in his first depositions and those depositions contain no such statement.

We are not satisfied, then, that, it is true, that the verdict was “decidedly against the weight of evidence.”

But even if we were, it would not follow, necessarily, that we should be bound, to order a new trial. The new trial Act of 1854, says; that “the Judges of the Superior Courts, may have the power to exercise a sound discretion, in granting new trials, where the verdict may be decidedly and strongly against the weight of evidence;” “ arid tl.c íi¡Hno (< u shall have power to revise and control such discreiionary power in the Superior Court.” Jlcts, 47.

Thus, it is seen, that granting a new trial, even where such a ground as this, is true beyond question, is but a mere matter of discretion.

And looking at one fact in this case, wo hardly think it would have boon an abuse of discretion, in the Court below, to have held this ground insufficient, oven if the ground were true beyond disputo. That fact is this: Prim offered to pay up Rawson, if he would relinquish the @100 of usury, Prim had paid for receiving indulgence till a certain time. Thai offer was made when about a third of the time given had run out. Rawson refused the offer. Prim ran away, and Rawson then turned upon MeJunkins, who, in every interpretation of the tesiimouy, was, at the time of Rawson’s refusal of Prim’s offer, bound only on Prim’s account. In the face of such a factas this, Rawson has no rightto expect t > receive any thing beyond what the law, taken in its utmost strictness, will give him. He may have what is nominated in his bond ; no more.

There was some conflict in the testimony, on another point; viz, whether McJnokins consented to the indulgence ; bnt there was as much evidence, perhaps, on the one side of that question, as there was on the other.

As to the third and last ground, it must of course be true, that that is not sufficient, if it be true, that the second is not.

Judgment affirmed.