Broach v. Kelly
| Decision Date | 30 September 1883 |
| Citation | 71 Ga. 698 |
| Parties | Broach. vs. Kelly. |
| Court | Georgia Supreme Court |
Verdict. Interest and Usury. Evidence. Witness. Practice in Superior Court, Before Judge Lawson. Jones Superior Court. April Term, 1883.
Kelly brought complaint for land against Broach, attaching as his abstract of title a deed from defendant to him, dated February 5, 1873.
The defendant pleaded that the deed was made to secure a usurious debt, and the title was void. The evidence was somewhat conflicting, but the respective positions of the parties may be briefly stated as follows:
Defendant insisted as follows: He had bought some land and owed a balance of purchase money amounting to $2,051. He applied to the plaintiff for the loan of it, and the latter told him that he did not have the money, but could lend him some bonds, which were at a discount. Defendant testified that on the day of the delivery of the deed, plaintiff stated to his banker (Plant) that he had decided not to let defendant have the bonds, but to let him have the money, which was done, and a note given including a usurious rate of interest. Plant testified that he sold no bonds for plaintiff; that he carried some bonds and delivered them to Isaac Hardeman, Esq., and Kelly, and that he did not know what they did with them. He swore that he paid a sum of money on Kelly's check at Blount & Hardeman's office, and his books showed that on February 6, 1873, $2,216.07 were drawn from plaintiff's bank account.
Plaintiff insisted as follows: hen applied to for the loan, he stated that he did not have the money, but could let defendant have certain bonds. The market price for the bonds that day was eighty-seven and one-half cents on the dollar but plaintiff had given for them a short timebefore ninety-two and one-half cents on the dollar, and was unwilling to take less, but said he would himself give eighty-seven and one-half cents for them. Defendant said that if they were worth eighty-seven and one-half cents, he would take them; and Isaac Hardeman, Esq., who represented defendant in that transaction, but was subsequently employed by plaintiff to enforce the contract, went out to inquire the value of the bonds, and on his return reported them to be eighty-seven and one-half per cent. He testified that he then made the calculation attached to the note to arrive at the amount for which it should be given. By accident, after calculating the value of the bonds at eighty-seven and one-half per cent, and adding the difference, to make what defendant was willing to give for them, he again added $100.00; that after beginning suit for the amount and the filing of the plea of usury, this mistake was discovered, and he entered the credit of $110.00, as of February 5, 1874, ($100.00 being the amount of the error, and $10.00 the interest on that amount). Mr. Hardeman also testified that, after defendant had agreed to take the bonds, they were delivered to him (Hardeman) as attorney for defendant, in his presence, and for the purpose and with the understanding above stated, and that defendant could have seen them if he had looked [defendant denied ever having seen or received the bonds]; and after signing the note, Kelly took the bonds, and he and defendant went off together.
The note, with the calculation attached to it, and the entries on it, was as follows:
This 5th of February, 1873.
[Indorsement on note:]
" This note is hereby credited with one hundred and ten dollars, as of date February 5th, 1874, erroneously charged in said note." [Not signed by any one.]
The jury found the following verdict:
"We, the jury, find for the plaintiff the premises in dispute, allowing the defendant six months to redeem the land by paying principal, interest a d attorney's fees at ten per eent, and costs of the suit."
The defendant moved for a new trial, on the following among other grounds:
(1.) Because the verdict was contrary to law and evidence.
(2.) Because the court admitted in evidence the interrogatories of James H. Blount, Esq., taken in an action on the note to secure which the deed was made, —counsel for defendant objecting that the case was different and the witness not dead or inaccessible. [The court stated in a certificate to the motion that, having tried the case arising on the note, it appeared to him that the issues were the same; that counsel for plaintiff stated that they, or one of them, understood that all of the depositions in one case could be read in the other; that there was such an agreement in presence of the court as to the depositions of Plant, and that the senior counsel for defendant was consenting that the depositions might be read.]
(3.) Because the court held that the defendant was not entitled to the opening and conclusion, although his counsel stated that their plea of usury admitted the deed 6et out in the abstract, and assumed...
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Norman v. Mcmillan, (No. 2142.)
...specifically admit that the plaintiff is "entitled to recover mesne profits as shown by his petition." Civil Code 1910, § 5746. In Broach v. Kelly, 71 Ga. 698, it was held: "Where, in an action of complaint for land, the plaintiff relied on a deed from the defendant, and the latter pleaded ......
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