Camp v. Phillips

• Court: Georgia Supreme Court
• Writing for the Court: McCAY, J
• Citation: Camp v. Phillips, 42 Ga. 289 (Ga. 1871)
• Decision Date: 31 January 1871
• Parties: A. L. CAMP, plaintiff in error. v. NANCY PHILLIPS, administratrix, defendant in error.*

42 Ga. 289

A. L. CAMP, plaintiff in error. v. NANCY PHILLIPS, administratrix, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Lochrane, C. J., concurred.

Warner J., dissented upon the ground that the charge was upon assumed facts. (R.)

Relief Act of 1868. New Trial. Before Judge Green. Newton Superior Court. September Term, 1870.

On the 27th of September, 1860, Green B. Turner obtained a judgment in said county against Noah Phillips for $2,000 00 principal, and $766 02 interest to that date. Fi. fa. was issued in October, 1860. In May, 1861, Turner transferred this fi. fa. and judgment to Camp. Phillips died in 1864, and his wife administered upon his estate. On the 5th of March, 1867, she paid $650 00 on said fi. fa. to Camp. On the 7th of October, 1868, the fi. fa. was levied upon certain property of said Phillips, deceased. Mrs. Phillips claimed the benefit of the Relief Act of 1868. On the trial, Camp's counsel asked the Court to rule that said Act was unconstitutional, because it impaired the obligation of contracts, etc. But he held it to be constitutional.

What property Phillips had at the date of the contract, and what he lost during the war and by its results (as the *emancipation of his slaves,) was shown. It is not material here. There was no evidence that Turner or Camp had any agency in these losses. Besides that, there was other evidence of an effort to pay, as follows:

Phillips' son testified, that, some time in the last year, Camp told him that he met deceased near the bridge at the factory, when deceased asked him if he would take bank money, and he, Camp, said he would, and that when deceased tendered him the bank bills he refused them, because they were not all bank bills. Deceased sold the Cedar Shoals to Steedman at $18,000 00, took ten shares in Cov-ington Mills in part payment, valued at $1,000 00. Steedman owes the estate about $3,000, 00, he thought, for personal property bought at the sale.

Steedman swore that he bought of deceased half interest in the Cedar Shoals at $18,000 00 in 1863, and paid him $5,000 00 in bank bills. He let deceased have property worth $1,500 00 then, and yet witness bought some things at the sale, for which he had never paid. Witness offered $3,000 00 for the machinery and stock, or deceased's part of the same; there has been no settlement of the debt since the war. Bank bills at the time of said trade were worth two or three times as much as the Confederate currency; he was to pay deceased $5,000 00 in bank bills, and deceased was to pay off the judgments against deceased.

The Clerk of the Superior Court testified, that in 1863 Phillips deposited with him about $3,100 00 in bank bills, to pay off said fi. fa.; some on Northwestern Bank, some on the Georgia Railroad Bank, and some on the Bank of Fulton, mostly Northwestern Bank, and but little on the Georgia Railroad and Banking Company. Witness thinks Phillips sold half of his factory to pay his debts, and that the bills of Northwestern Bank were then about as good as any bank bills. Witness turned these bills over to the sheriff.

The sheriff testified, that as agent for Phillips, he went to Camp, who had the fi. fa., and asked him if he would take *half in bank bills, and half in Confederate money. Camp refused; said he had promised to take bank bills. He then offered to pay all in bank bills. Camp refused, saying that he wanted Georgia Railroad bills. The money was not with witness at the time, but in his office, but Camp knew he had it. This money was afterwards invested in Confederate States cotton bonds, and they remained in the office, till they became worthless.

Another witness said that Northwestern bills were then about as good as any, and that when the bills were tendered to Camp, he said he was going to leave the country, and preferred to hold the judgment.

It appeared by other evidence that said investment in bonds was made, and the bonds were put in evidence. And it was shown that this was a security debt, contracted in 1856.

Plaintiff's counsel requested the Court to charge the jury, as follows: "1st. That they must render their verdict upon principles of equity, as regulated by law. 2d. That by law the judgments of a Court of competent jurisdiction of the person and subject matter, are conclusive of the rights of the parties and their privies, unless properly attacked for fraud. 3d. That to reduce the judgment upon the ground of loss of defendant, with which plaintiff had no connection, would impair the obligation of that contract, which they could not by law do. 4th. That to entitle the defendant to a reduction of the amount of the judgment, on the ground of equities, these equities must exist between the parties, and at the time of the contract. 5th. That the Court must explain to the jury what the statute and the law means by the equities between the parties. 6th. That the jury have no power to make contracts for the parties, nor have they the right to alter or change the contract made by the parties, nor have the jury the right to mould the contract to suit their pleasure. That, if the jury attempt to make a contract for the parties, or to change or vary the contract to suit their views of equity, *such verdict would impair the obligation of the contract, and be void, as in conflict with the Constitution of the United States. 7th. That, although the law permits evidence to go to the jury to show the amount and value of the property, at the time the debt was contracted, or the contract entered into, and to show upon the faith of what property the credit was given, and of what tender or tenders of payment he made to the creditor at any time, and that the nonpayment of the debt was owing to the refusal of the creditor to receive the money tendered, or offered to be tendered, and of the destruction or the loss of the property, upon which the faith of the credit was given, and how and in what manner the property was destroyed or lost, and by whose fault, yet this evidence does not justify the jury in finding a verdict that impairs the obligation of a contract. The words \'according to the equities of the case, \' does not confer upon the jury an unlimited, arbitrary discretion. But they must render their verdict on principles of equity as regulated by law, and that by law, judgments of a Court of competent jurisdiction of the person and subject matter are conclusive of the rights of the parties, unless attacked properly for fraud. All of which said written requests were refused by the Court. The Court charged the jury as follows:

First. He read to the jury the first and second sections of an Act of the Legislature of Georgia, entitled an Act for the Relief of Debtors, and to authorize the adjustment of debts upon the principles ot equity, passed in 1868, and instructed the jury that the said Act was constitutional, and that the Supreme Court had so decided it. Second. As requested in writing by counsel for defendant, the Court charged the jury 'that if Camp agreed with Phillips to receive bank bills in payment of the debt, and Phillips went forward and sold property at a less price then he could have got for it in the commoncurrency of the country, and Phillips tendered him the bank bills in a reasonable time, then it amounts to a *payment, and that they, the jury, should find for Mrs. Phillips. The jury returned a verdict as follows: \'We, the jury, find in favor of the movant, Mrs. Nancy Phillips, administratrix, and that the fi. fa. and judgment has been paid." Whereupon counsel for plaintiff moved for a new trial in the said cause, on the following grounds, to-wit: Because the Court held said Act of 1868 to be constitutional; because he charged, as requested by defendant, when there was no evidence to support said charge, because the Court refused to charge as requested by plaintiff\'s counsel; because the verdict was contrary to evidence, etc.; and because of the admission of certain evidence not material for our purposes. He refused a new trial on all the grounds taken, and also because said judgment was, on its face, dormant.

This refusal of a new trial was then and there protested against, counsel for plaintiff stating, in his place, that the plaintiff, before the lapse of the seven years from the date of the said judgment, had sued out a summons of garnishment for Enoch Steedman on this said judgment, and had judgment on said garnishment for a large amount of this debt, and that the said order in that form might, under the said verdict and judgment in the said case, injuriously affect the rights of the plaintiff, for that defendant had already moved to vacate the said judgment on the garnishment against E. Steedman. With the record of the cause, the Clerk sent up a copy of said garnishment papers, showing the truth of said statement. The refusal of a new trial is assigned as error.

John J. Floyd, for plaintiff in error.

A. M. Speer; A. B. Sims, for defendant.

McCAY, J.

This is a case under the Relief Act of 1868. Before that Act, the...