153 Ga. 29 | Ga. | 1922
1. The plaintiff, claiming under a junior security deed from W. E. Hogg to him, filed his equitable petition attacking a prior security deed from W. E. Hogg to the Eady-Baker Grocery Company, on the ground' that the latter deed was tainted with usury and void, and prayed that this prior security deed might be canceled, in order that he might have funds arising from the sale of the lands embraced in both deeds applied to his debt secured by his junior deed. The plaintiff introduced evidence showing that on the book accounts between Hogg and the Eady-Baker Grocery Company, between 1902 and June 13, 1914, inclusive, there were various items charged to Hogg under the language, “ interest 10 The Eady-Baker Grocery Company claimed that under an agreement between it and Hogg, the latter was to pay the cash prices of merchandise, plus 10 per cent, as the time prices of goods bought by him from this company. In some instances this 10 per cent was charged on balances brought forward from year to year. On June 16, 1914, these book accounts were balanced by a cash payment of $2,590.70, and closed. The defendants introduced a note from Hogg to this company, for $6,130.88, dated November 25, 1907, and secured by a mortgage of even date; and a note from Hogg to this company, for $6,130.88, dated June 15, 1914, secured by a deed of even date. Neither of these notes was charged in the accounts of Hogg appearing on the books of this company. There was no direct proof that this note of Hogg to this company embraced any part of these accounts, or that there was usury in it; but at the most, proof of circumstances, not strong enough to authorize this court to draw that conclusion, but from which the jury might or might not draw that conclusion. There was no proof of the consideration of this note, except such circumstances. Held, that this court can not, as a matter of law, hold that a verdict should have been returned finding that the security deed of this company was tainted with usury and void.
2. The court did not abuse its discretion in “ forcing ” the plaintiff to go to trial before the production of all the books and other documentary evidence mentioned in his notice to the defendants to produce, it not appearing that these books and documents were not produced during the trial, and the character and relevancy of their contents not being shown; nor did the court err in requiring counsel to proceed with the trial before he had time to examine these books, a previous order of the court having-been passed allowing the plaintiff to examine these books, and an examination thereof having been made by an accountant for the plaintiff before the trial, and no excuse being shown why his counsel had not examined the same prior to the time the case was called for trial.
3. The court did not err in admitting, over the objection of counsel for the plaintiff, the evidence set out in the seventh ground of the amendment to the motion for new trial.
4. Counsel for the plaintiff having expressly abandoned the fifth, sixth, and eighth grounds of the amendment to the motion for new trial, the same are not considered.
Judgment affirmed.