Abel v. Jarratt

• Decision Date: 29 March 1897
• Citation: 28 S.E. 453,100 Ga. 732
• Parties: ABEL v. JARRATT et al.
• Court: Georgia Supreme Court

28 S.E. 453

100 Ga. 732

ABEL v. JARRATT et al.

Supreme Court of Georgia

March 29, 1897

Syllabus by the Court.

1. In order to entitle the defendant in a civil action, arising ex contractu, to the opening and conclusion of the argument, by virtue of an admission that the plaintiff has a prima facie right to recover, the defendant must, before the introduction of any evidence, admit facts authorizing, without further proof, a verdict in the plaintiff's favor for the amount claimed in the declaration. It is too late, after the plaintiff has made out a prima facie case, for the defendant to make any admission which will deprive the plaintiff of the right to open and conclude.

2. While agency may be proved by the testimony of the alleged agent, as a witness, it cannot be proved by his mere declarations, either spoken or written. Such declarations ought not, in any event, to be received in evidence, unless the party tendering the same offers, in good faith, to supplement them by other and independent evidence of agency and, if such offer is not made good, the declarations ought to be excluded from consideration by the jury. The safer and better practice in all cases is to require proof of the agency before admitting such declarations at all.

3. The action being upon a promissory note against a principal and a surety, and the defense of the former being that the time of payment had, for a valuable consideration, been extended to a date beyond that upon which the declaration was filed, for which reason the action was prematurely brought, and the defense of the latter being that because of such extension she was discharged, there was no error in charging the jury in substance, that both defenses depended upon the establishment of the same fact, viz. that the extension had been granted as stated.

4. There was no error, in such case, in charging the jury that a finding for the defendants would not result in finally discharging the principal from liability, since sustaining his plea in abatement could not relieve him from ultimately paying the debt.

5. The defendants' contention being that the alleged extension had been granted, not by the plaintiff in person, but by her agent, and there being no proof showing any agency for this purpose, or that the alleged agent had the slightest authority to grant any extension at all, the verdict for the defendants was totally unsupported, and palpably wrong.

Error from city court of Macon; J. P. Ross, Judge.

Action by Mrs. Rebecca G. Abel against R. P. Jarratt & Co. and Mrs J. A. Christian upon a promissory note. Judgment for defendants. Plaintiff brings error. Reversed.

Dessan, Bartlett & Ellis, for plaintiff in error.

L. D. Moore, for defendants in error.

FISH J.

Abel brought suit against defendants upon a promissory note. Upon the trial there was a verdict for defendants. Motion for a new trial was made and overruled, and plaintiff excepted. The facts and grounds of the motion passed on appear in the official report.

1. In order to entitle the defendant in a civil action, arising ex contractu, to the opening and conclusion of the argument before the jury, by virtue of an admission that the plaintiff has a prima facie right to recover, the defendant must before the introduction of any evidence, admit facts authorizing, without further proof, a verdict in the plaintiff's favor for the amount claimed in the declaration. It is too late after the plaintiff has made out a prima facie case for the defendant to make any admission which will deprive the plaintiff of the right to open and...