Blalock v. Phillips

• Decision Date: 31 December 1868
• Parties: JESSE L. BLALOCK et al., plaintiffs in error. v. JOHN PHILLIPS, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 216

JESSE L. BLALOCK et al., plaintiffs in error. v. JOHN PHILLIPS, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

Motion for new trial. Misconduct of Jury. Decided by Judge Collier. Fayette Superior Court. March Term, 1868.

Phillips brought an action against Blalock and John T. He-well, as partners in cotton-buying. It was called, in the declaration and in the bill of exceptions, "an action on the case, " but, in fact, it contained four counts, in each of which it was averred that Phillips had sold and delivered to said defendants, at their special instance and request, two thousand pounds of lint cotton; two of these counts were upon special promises to pay, in one $30 per 100 lbs., and in the *other $50 per 100 lbs., and the other two were upon promises to pay what the cotton was reasonably worth, the one putting its value at $30 per 100 lbs., and the other putting it at $50 per 100 lbs. The defendants plead that they purchased said cotton from the plaintiff for Confederate currency, and with it had paid him for it.

The evidence was substantially this: All the parties were sworn and agreed, that on the 7th of March, 1865, plaintiff sold to the defendants four bales of cotton, weighing five hundred pounds each, at one dollar per pound, to be paid in Confederate currency, and took their note for the $2,000 00, agreeing to keep the cotton in his gin-house, at defendants\' risk, till they called for it, and that plaintiff set it apart in his gin-house for them; on the 3d of May, 1865, Blalock, en route to a justice\'s court, called on plaintiff, and paid him the note, and $20 00 in said currency, as interest; that about the last of July, 1865, Blalock called for the cotton; plaintiff refused to deliver it, saying the currency was worthless when he took it, and that he would not deliver the cotton, but was willing to arbitrate the matter; that afterwards, on the 3d of August, 1866, the defendants and others went to the gin-house of plaintiff, at night, armed, and by force, took the cotton and carried it away.

The plaintiff swore that he called for payment of said note several times, but, by reason of the absence of one or the other of the defendants, it was not paid, while the defendants testified that they could and would have paid him, but he said he only wished to know that the note would be cashed on demand, as he wished, with its proceeds, to purchase a slave from one Mcintosh, and they showed, by another, an offer to pay, and that plaintiff said he did not then wish the money. Plaintiff also swore that, when he took the currency from Blaloek, he knew nothing of the surrender of the Confederate armies, nor learned it till, on the same day, he went to trade with Mcintosh, who gave him the information, and refused to receive the currency, but Blalock swore that when he paid the note, he told plaintiff that Lincoln was dead, and that Lee had surrendered. The defendants both testified, *that after plaintiff had shewn Blalock the cotton, and refused to deliver it to him, Hewell had bought out Blalock's interest, by giving him his note for $360 00 in gold, which was subsequently paid off by part of the proceeds of the cotton, when Hewill sold it, and that, while it was true Blalock was present when the cotton was forcibly taken from the gin-house, he had no interest in the cotton. The reasons for his going, given by Blalock, was, in one instance, because he wished to look after his wagon and team, which was hauling the cotton, and, in another, that he went because some of the boys who went along were drinking, and their parents would not allow them to go unless he went.

The value of cotton was shewn to range from twenty-six cents to forty-three cents per pound, during 1865. There was no evidence as to the value of Confederate currency, except as aforesaid, and that, soon after the Federal army took Macon, Georgia, $10 00, in gold, bought $2,500 00 in such currency.

Defendants' attorneys requested the Court to charge the jury, that, if Blalock had sold out his interest in the cotton to Hewell before Hewell took it, Blalock was not liable in this form of action. The Court refused so to charge, but charged, that, if, under the rules which he had laid down, (what they were does not appear,) the title and possession had not passed to the defendants, and the defendant, Blalock, aided or assisted, in any way, in taking the cotton, then he was liable in this form of action; but if the title and possession had passed, or the defendant, Blalock, did not aid or assist in taking the cotton, then he was not liable.

The plaintiff had a verdict for $820 97. Thereupon, defendants' attorneys moved for a new trial, upon the grounds that the verdict was contrary to the law and evidence, that the Court erred in not...