Cheney v. Error

• Decision Date: 31 January 1871
• Citation: 42 Ga. 51
• Court: Georgia Supreme Court
• Parties: ISAAC CHENEY, plaintiff in error. v. SMITH & ALEXANDER defendants in error.

42 Ga. 51

ISAAC CHENEY, plaintiff in error. v. SMITH & ALEXANDER defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871).

Continuance. Practice. Before Judge Johnson. Talbot Superior *Court. May Term, 1870.

Smith & Alexander brought against Cheney complaint uponan open account for $500 00, for "retainer and services rendered for him by them, as attorneys and counselors at law, in the matter of the exchange of his stock in the Upson County Railroad Company for stock in the Southwestern Railroad Company." The plea was the general issue.

When the cause was called for trial, defendant moved to continue, because one Mustian, a director of the Southwestern Railroad Company, was a material witness by whom he could show that, in fact, the Southwestern Railroad Company never intended repudiating their promise to give him its stock for his interest in said Upson County Railroad Company, but always, bona fide, intended carrying it out. The showing was in due form, etc. Plaintiffs' counsel said he would admit "what Cheney had stated he could prove by Mustian, and go to trial." To this, defendant's counsel replied, "I suppose you will not controvert what Cheney has stated he expects to prove by Mustian." The Court said he "would not hold plaintiffs' counsel to that rule, but, if he would admit that Mustian, if examined as a witness in the case, would swear to what Cheney had said, he would overrule the motion to continue." Plaintiffs' counsel said he would so admit it. The Court then required defendant's counsel to reduce said statement to writing and make an affidavit to it. This was done, defendant's counsel objecting to the requiring said affidavit. When it was prepared, plaintiffs' counsel wrote upon it the admission required by the Court as aforesaid, and the cause went to trial, defendant objecting.

Said Smith testified that Cheney came to plaintiffs' office, represented that the Southwestern Railroad Company were not going to stand up to an agreement which they had made with him to exchange a large amount of its stock for defendant's interest in the Upson County Railroad Company, and wished plaintiffs to sue the Southwestern Railroad Company for him. Smith, upon hearing Cheney's statement, advised him that the agreement could not be enforced, because it was *voluntary and without consideration. In a week or ten days, Cheney urged plaintiffs to take his case and bring suit; said he would not leave until they would agree to do so, and that he would pay them to their satisfaction. Smith agreed to take charge of the business and do what he could to get the Southwestern Railroad Company to do what they had promised. He and his partner wrote twice to the President of the Southwestern Railroad Company, urging the execution of the agreement; frequently conversed with Mustian on the subject; saw...