Buttram v. Jackson

• Decision Date: 31 March 1861
• Citation: 32 Ga. 409
• Parties: A. J. Buttram, plaintiff in error. vs. Ira G. Jackson, defendant in error.
• Court: Georgia Supreme Court

32 Ga. 409

A. J. Buttram, plaintiff in error. vs. Ira G. Jackson, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1861.

Assumpsit, in Carroll Superior Court. Tried before Judge Hammond, at October Term, 1860.

The questions in this case arise out of the following state of facts:

Some time in December, 1857, Ira G. Jackson sold to Andrew J. Buttram a mule, and received in payment therefor two promissory notes, given by one D. H. Harris, one of the notes dated 10th November, 1857, and due twelve months after date, payable to said Buttram, or bearer, for the sum of $30 00; the other, dated 22d October, 1857, and due 25th December, 1858, payable to Martha McElreath, or bearer, for $40 00.

On the 22d January, 1859, Jackson instituted suit in Carroll Superior Court, against Buttram, to recover the value of the mule, alleging, in one count of his declaration, that Buttram, at the time of the trade, warranted the notes to be good, and that Harris was perfectly solvent, and that if the notes were not paid by Harris at their maturity, he, Buttram, would pay the amount due on the same, whereas, in truth and in fact, Harris was insolvent at the time, and afterwards absconded, and went to parts unknown.

The defendant pleaded the general issue.

On the trial of the case, the notes were introduced, and it was shown by the evidence that plaintiff had demanded from defendant payment of the notes before the suit was brought; that defendant admitted that he traded the notes as good notes; that at the time of the trade, Harris owned land worth from $600 00 to $800 00; that levying officers had been to Harris's, with fi. fas. against him, in search of property, but could find none, and that the fi. fas. were subsequently paid off; that Harris was deemed solvent by many who knew him, although there were some judgments against him; that Harris, through the defendant, received a legacy of some $700 00, in the Fall of 1857; that when the trade was made, Jackson, holding the notes in his hand, secretly requested a bystander to take notice of what he was going to say to Buttram, and the reply of the latter; that Jackson asked Buttram if the notes were good, and told him that he must indorse them, to which Buttram replied, that he would not indorse them, that he had been bit that way too often, and that Jackson must take the notes at his own risk. The defendant proposed to prove by a witness whowas present, that in the Fall of 1857, a settlement of accounts was made between Buttram and Harris, and that the parties said, at the time that Buttram was due to Harris the sum of $200 00, that the settlement included the legacy which Harris received through Buttram as his attorney. Counsel for plaintiff objected to so much of this testimony as related to the sayings of the parties as to the amount due Harris, and the objection was sustained by the Court, and the testimony rejected, and defendant excepted.

Plaintiff, in rebuttal, offered in evidence two fi. fas. against Harris, one dated in May, 1858, and one in September, 1858, upon which there was an entry of a levy on a lot of corn, and a further entry that the corn was sold for $80 00, and the money applied to "older fi. fas. This testimony was objected to, on the ground that the entry on the fi. fas. did not specify the " older fi.fas., " to which the money was applied, but the Court overruled the objection, and admitted the fi. fas. in evidence, and defendant excepted.

When the testimony and argument had closed, the presiding Judge charged the jury, " that if the defendant told the plaintiff, at the time of trading him the notes on Harris, that he considered Harris good, but that he would not be bound, yet he was bound, if Harris was not good at that time, if Jackson took the notes on such representation, although there was no guaranty by defendant to stand good for the notes, the notes being taken by...