Bradley v. Freed

• Decision Date: 19 November 1898
• Citation: 51 S.W. 124
• Parties: BRADLEY et al. v. FREED et al.
• Court: Tennessee Supreme Court

51 S.W. 124

BRADLEY et al. v. FREED et al.

Court of Chancery Appeals of Tennessee.

November 19, 1898.

Appeal from chancery court, Smith county; T. J. Fisher, Chancellor.

Bill by D. A. Bradley and others against J. M. Freed and others. Decree for complainants. Defendant Freed appeals. Affirmed.

John S. McMurry and James T. Miller, for appellant. Ed T. Seay, for appellees.

WILSON, J.

The bill in this case was filed to collect a balance alleged to be due on two purchase-money notes given by defendant Freed for a tract of land by an enforcement of a vendor's lien. It appears that Freed had sold a part of the land to his co-defendant Wright, and it is averred in the bill that the complainants had not waived or released their lien on the part so sold, and it is prayed that the whole tract be sold, if necessary, to pay the balance due from Freed. The chancellor declined to order a sale of the part of the tract sold by Freed to Wright, but ordered a sale of the part still retained by Freed, to pay the balance found by him to be due on the notes of Freed sued on. The action of the chancellor in declining to decree a sale of the part of the tract conveyed by Freed to Wright was not appealed from by the complainants, and we need not further notice this feature of the case.

The contest is over a credit of $500 claimed by Freed. The chancellor disallowed this credit, and Freed appealed. Freed insists that he paid this $500 to complainant D. A. Bradley, acting for himself and wife, and as the agent of the other complainants, in March, 1892. This is denied by Bradley. The question is purely one of fact. The substance of the error assigned by Freed to the holding of the chancellor disallowing his contention is that the weight of the proof sustains his proposition that the payment was made between the 1st and 15th of March, 1892. He produces no receipt, or written evidence, signed by any one showing its payment. He is not certain whether he paid it in money, or by check on a bank. No check is shown in the evidence. He does, however, exhibit a statement prepared by Bradley, as he claims, in May, 1894, and this statement includes a credit of $500 of March 1, 1892. Bradley admits that this statement is in his handwriting, but says, in substance, that it was put in to show the balance due upon the basis of Freed's contention, and that it was to stand if he produced any receipt or evidence, aside from his own remembrance, showing its payment; otherwise, it was not; and that, at the time, Freed said he was arranging to borrow the money to pay off the notes, and wanted to know the sum he must obtain to do so, upon the theory of finding satisfactory evidence that he had paid the $500. Of course, if credit is allowed, it must be upon the idea that the weight of the evidence shows the payment. Pleading the payment, the burden is upon Freed to prove it. He affirms, and Bradley denies; and, taking each party to be equally entitled to credit, the case of payment is not sustained.

Freed swears that the money with which this payment was made was received from the sale of a lot of corn shipped to a Nashville firm. The deposition of William Freed, a brother of the defendant, was taken in the case. He testifies, in effect, that he and his brother were partners in business in Nashville; that they dissolved March 23, 1892; that a few days after this the defendant, his brother, came to his new business place, and told him that he would need money badly the next day, when the witness said, "What's the matter? I thought you got a whole lot of money just yesterday from corn, — a whole lot of corn down;" and he (the defendant) said, "Yes, that money is gone already; I have given that money to Bradley." All the material or relevant part of the deposition of this witness was objected to, and the objection sustained. The defendant also introduced several witnesses, who, in their depositions, testified to several instances in which they had paid money to Bradley, which he seemed to have forgotten entirely, and which he would not acknowledge until his receipts were produced, or such other evidence as he could not deny. This class of evidence was objected to, and the objection sustained. The action of the court in suppressing the evidence indicated was excepted to by defendant, and his exceptions properly preserved by bill of exceptions. One or more of these witnesses testify, in substance, that Mr. Bradley had to some extent a defective memory in relation to business transactions. We do not understand from the record that the chancellor declined to consider this class of evidence. His ruling, as we understand it, excluded the testimony of witnesses giving particular instances in which Bradley had forgotten payments made to him, or that money had been left with him. Error is assigned here to the ruling of the chancellor in suppressing the evidence above indicated. It is insisted that the testimony of William Freed proving that defendant told him, in March, 1892, that he had paid Bradley the corn money, is competent, as it is proof of a previous consistent statement made by the defendant. Queener v. Morrow, 1 Cold. 125, Dossett v. Miller, 3 Sneed, 73, and Bank v. Robinson, 1 Baxt. 484, are cited in support of this insistence. A close and careful examination of these cases will show, we think, that they do not support the position of appellant. In the case of Dossett v. Miller, supra, Judge Carothers, in delivering the opinion of the court, announced the principle that,...