Branch v. Dubose

• Decision Date: 31 July 1875
• Citation: 55 Ga. 21
• Court: Georgia Supreme Court
• Parties: Branch, Sons & Company, plaintiffs in error. v. Susan DuBosE et al., defendants in error.

55 Ga. 21

Branch, Sons & Company, plaintiffs in error. v. Susan DuBosE et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Continuance. New trial. Evidence. Estoppel. Guardian and ward. Sales. Factors. Before Judge Gould. City Court of Augusta. February Term, 1875.

Susan DuBose and William W. Simpson, as guardian of Louisa T. and William V. DuBose, minors, brought assumpsit against Branch, Sons & Company on the following bill of particulars:

"Branch, Sons & Company,

"To Susan DuBose and William W. Simpson, guardian, Dr. 1873.

"April 24th. To net proceeds of twenty-one bales of cotton sold by you on our account..........$984 82

The record discloses no pleas. The jury found for the plaintiffs. The defendants moved for a new trial upon several *grounds. The motion was overruled by the presiding judge in the following opinion, which reports the case:

"This suit was brought to recover one-fourth of the proceeds of a lot of cotton sold by the defendants as factors. The plaintiffs claim that the cotton was raised, in 1872, on a plantation owned by them in South Carolina, and rented to two persons named Smith, who sent it to market. These facts are not denied. The plaintiffs further claim that they were entitled, by the terms of their lease, to one-fourth of the crop by way of rent, and that the defendants received the cotton for sale with notice of this interest, and understanding that they were to account for it. The defendants admit the receipt and sale of the cotton and the amount of the plaintiff's interest, if they have any interest, but deny any such interest, inasmuch as they say the cotton was sent to them by the Smiths in their own names alone, without any notice of the plaintiffs' claim. They set forth a lien on the •cotton, as the property of the Smiths, for a general balance of advances on their crop, and they insist, moreover, that James R. DuBose, guardian for Susan W. DuBose and her brother, then both minors, settled the account with the defendants, assuming the debts due to the defendants from the Smiths in the name of his firm of Arnold & DuBose, and taking to that firm all claim to the cotton and its proceeds."

"I believe these are the facts as insisted on by the opposing parties.

I. "The first ground of the motion for a new trial, is the refusal of the court to continue the case for want of the testimony of F. E. Smith. He was one of the tenants who raised the cotton, and the defendants hoped to contradict by him the testimony of W. D. Smith, his co-tenant, which had been offered on the other side. "Now, in the first place, it was not sufficiently shown to the court, what Mr. F. E. Smith's evidence would be; and, in the second place, no diligence was shown to obtain it on the part of the defendants. The plaintiffs had issued a commission forhim, which was not returned. But this was not the *act of the party seeking the continuance. It is true that W. D. Smith\'s depositions had been very recently returned to court, within a day or two, if I remember right, and the defendants were only then aware of the necessity of contradicting him. But suppose he had been on the stand, and his evidence had been what the defendants did not expect, could these parties have claimed a continuance in the mere hope of obtaining contradictory testimony? I can see no difference between the two circumstances.

II. "The second ground of the motion is the refusal of the court to strike out the testimony of W. D. Smith as to the arrangements for the crop of 1871, the crop of 1872 being the subject of litigation. There was evidence going to show that the arrangement of 1871 was continued to 1872, with the knowledge of the defendants. Whether that evidence was sufficient or not, I was not competent to decide at that stage of the case. It was certainly sufficient to make the testimony objected to admissible, and the effect of the whole was matter for the jury, and not for me to decide.

III. "The third ground is the striking out of one of the defendants' pleas. This plea set forth a recovery, in Wilkes...