65 Ga. 380 | Ga. | 1880
This cause came before the superior court as a suit brought on a promissory note, whereupon the jury found for the plaintiff, a motion was made for a new trial, it was denied defendant, and it excepted.
1. The first ground is that the court erred in admitting the note in evidence, and in refusing to non-suit the plaintiff. It would have been better, perhaps, if the court had required proof that the person who signed the note was the agent of the Rockdale Paper Mills Company—the same being signed only by a person as agent and. not designating for whom he was agent—and for want of that proof to have non-suited the plaintiff • but the proof was supplied afterwards during the trial, and if there be any error it did not hurt. Besides, the plea admitted that the note was the note of the company, and no issue was made on that point.
2. The plea of recoupment was filed, and the jury found thereon against the defendant, and the next assignment of error is that the verdict is not supported by evidence, and is contrary to law. It is abundantly supported. The entire defense looks like an afterthought. The note was' given for services in 1874, and payments were made thereon up to December, 1877, and four of these payments were acknowledged in the plea to have been made
'3. The affidavits fail to show any improper conduct of plaintiff’s counsel in talking in presence of the jury, or that any of them heard one word which could have influenced the verdict, and where such is the case, it would have been gross error to grant a new trial.
4. The verdict, however, is wrong in that the principal debt found by the jury exceeds the amount of the note, and a new trial must be awarded unless the plaintiff will reduce or strike off the principal down to the proper sum. The note is for $511.24, and the verdict is for $516.18 as principal. The defendant insists that a right calculation will reduce the principal even below the face of the note •if the credits on the note are all allowed, and the interest is first extinguished, and the overplus of payment applied to the principal. Let the calculation be made, and the plaintiff correct the judgment accordingly, in which case it will be affirmed; otherwise, it must be reversed.
In either event the costs of bringing the case to this court must be paid by the defendant in error, inasmuch as the plaintiff in error was constrained to bring the case here to have a manifest, though in amount a very small, injustice to it corrected.
Judgment affirmed on terms.