Blackshear Mfg. Co v. Stone

• Decision Date: 31 January 1911
• Docket Number: (No. 2,762.)
• Citation: 70 S.E. 29,8 Ga.App. 661
• Parties: BLACKSHEAR MFG. CO. v. STONE.
• Court: Georgia Court of Appeals

70 S.E. 29

8 Ga.App. 661

BLACKSHEAR MFG. CO.

v.STONE.

(No. 2, 762.)

Court of Appeals of Georgia.

Jan. 31, 1911.

(Syllabus by the Court.)

1. Appeal and Error (§ 1001^*)— Review-Verdict.

Although the evidence strongly preponderates against the verdict, yet, since there is some evidence to support it, this court has no jurisdiction to grant a new trial on the ground that the verdict is contrary to the evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 392S-3934; Dec. Dig. § 1001.*]

2. Set-Off and Counterclaim (§ 33*)—Subject-Matter.

Causes of action ex delicto cannot, except in some special instances, be set off against a suit proceeding ex contractu. While damages resulting from the plaintiff's breach of a contract sued on may be set off by plea of recoupment, still this right of set-off is not broad enough to include damages alleged to have arisen from the plaintiff's wrongful act in connection with a transaction legally distinct from the contract sued on, even though closely connected with it in point of time.

[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 54, 55; Dec. Dig. § 33.*]

3. Interest (§ 10*)—Payments on Note Before Maturity—"On"—"On or About."

Where a promissory note is payable on a fixed day. and not "on or about" a fixed date, and the debtor makes payments before the maturity of the note, he is not entitled, in the absence of an agreement to the contrary, to interest on the payments from the time they a"re made up to the date the note is due.

[Ed. Note.—For other cases, see Interest, Dec. Dig. § 10.*

For other definitions, see Words and Phrases, vol. 6, pp. 4000-4007; vol. 8, p. 7737.]

Error from City Court of Baxley; V. E. Padgett, Judge.

Action by the Blackshear Manufacturing Company against W. L. Stone. From a judgment granting inadequate relief, plaintiff brings error. Reversed.

The Blackshear Manufacturing Company sued Stone upon a promissory note for about $3,500, less certain credits which reduced the amount due to some $3,000. Stone set up in defense that the note sued on was given in renewal and in novation of a previous indebtedness, represented by notes due by him to the Blackshear Manufacturing Company for fertilizer; that the first notes had been secured by the transfer to the manufacturing company of a number of promissory notes taken by Stone from his customers, and that at the time when the note sued on was given it was expressly agreed between him and the agent who took the note for the manufacturing company that, if he would secure the indebtedness by mortgage, they would surrender to him the customers' notes which they held as collateral, and which were then in his (Stone's) possession for collection; that he executed the note sued on, and executed and delivered the mortgage; that the agent of the manufacturing company then asked him to let him have the notes to take them back to the home office of the company to check them up, promising to return them to Stone; that, instead of returning them, the company had converted them to their own use, and had placed them in the hands of Messrs. Parker & Highsmith, attorneys, for collection; that the notes were all solvent, and worth their face value; that by reason of the company's conversion of the notes they had damaged him in the sum of a named amount, about $1,500. He further pleaded that certain payments were made prior to maturity, and that, while these sums had been credited, he should also be allowed 8 per cent. interest on these payments, from the time they were made up to the maturity of the note. No agreement to this effect is alleged, but the matter seems to be pleaded as one of legal right. The plaintiff demurred to these defenses, and the court overruled the demurrer. Exceptions pendente lite were duly preserved, and error is assigned as to this ruling. The trial resulted in a verdict in favor of the plaintiff for an amount slightly in excess of $1,400, thus allowing to the defendant a set-off equal to the value of the notes which he claimed had been turned over to the plaintiff's agent under the circumstances set out in the pleading. The plaintiff made a motion for a new trial, which was overruled. Further facts necessary to an understanding of the points presented will be found in the opinion.

Parker & Highsmith, for plaintiff in error.

W. W. Bennett and Alvin V. Sellers, for defendant in error.

POWELL, J. (after stating the facts as above). To begin with, the verdict is shockingly contrary to the weight of the evidence. The transaction alleged by the defendant is, in light of all the circumstances, so unusual and so extraordinary, and his claim that all the old guano notes were worth dollar for dollar is so out of consistency with all the circumstances of the case, as to make us wonder how the jury adopted any such theory of the evidence. If the defendant's claim were true, that the plaintiff, at the time of taking...