29 Ga. 365 | Ga. | 1859
By the Court.
delivering the opinion.
Was the Court below right in refusing the motion for a new trial? We think so.
The main ground of the motion, urged here, was, the ground, that the verdict was contrary to the evidence. The issue was on the plea of non est factum. The verdict was in favor of the plea. The question on this ground, therefore, is, was the “weight of the evidence decidedly and strongly” against the plea?
The whole evidence against the plea consisted in the testimony of one witness, on one matter — consisted in the testimony of W. H. Smith, on the matter of the credit
But this testimony is greatly weakened by several things. ¡1st. The note was a sealed note, and the credit, which was for only two or three dollars, was entered just before -the time at which the note would go out of date, as if, merely, •to save it from going out of date. 2d. The witness was the brother of the plaintiff. 3d. Not only so; the note,probably ■belonged to the estate of the witness’s father, and, therefore, -was a note in which he, as heir to his father, had an inter-est. 4th. The letters show, that the defendant disputed the •credit. 5th. They also show, that the plaintiff was willing -to abandon the note, if the defendant would pay the costs •of the action, which costs did not amount to more than ;$5 00 or $6 00. 6th. Five witnesses swore, that they did •not think the signature that of the defendant. True this ••testimony was not worth a greaf deal, for the time when ■those witnesses saw the defendant write, was many years ¡before the time when they testified. But then, per contra, the time when the note bore date, was many years before the time when they testified.
Now we think that, all of these things considered, the •evidence for the plea, almost, if not quite, balances the evidence against the plea. And if the evidence did this, it is -not true, that the weight of the evidence, was strongly and decidedly against the plea. And, consequently, it is not true, that the weight of the evidence, was strongly . and ■decidedly against the verdict.
This ground involves all of the grounds except two. Of -those two, the one was the admission of the letters of the .plaintiff, to the defendant; the other, the charge, that if the plaintiff offered to settle or dismiss the case, on the defen
That the letters were admissible, is clear, if proof about the compromise was admissible. Was proof about that admissible, seeing, that there had been no performance of what, by the compromise, the defendant was to do; viz: pay the costs, but only an offer to perform ? And this resolves itself into the question, rvas the charge as to the compromise right ?
We have much doubt on this point. But we rather think, . that as the case stood, the charge rvas allowable. As the case stood, the presumption rvas, that the note rvas not the note of the defendant, for the case stood with a plea of non est factum in. If it was not his note, his liability for the costs, rvas only secondary, only conditional — depending on whether the plaintiff should be able to pay them or not. Avhilst the liability of the plaintiff to pay them Avas primary and absolute. Therefore, a promise by the defendant to pay the costs was, on the presumption aforesaid, a thing of value to the plaintiff; it Avas a promise to pay Avhat, otherwise, he would have had to pay, and to pay as his own debt; and being of value to him, it was a sufficient consideration, to support his promise to dismiss or abandon, the action. We rather think, then, that the charge, Avhich in effect held the compromise to be binding, though there had been no payment of the costs, but only an offer to pay then. Avas not erroneous. .
But still Ave have great doubt on this point — doubt Avhet; • er in such a case, any thing short of actual performance t the promise, Avill do. The point was barely mentioned; ■■ Avas not argued.
Judgment affirmed.
