Clark v. Carter

• Decision Date: 31 January 1853
• Docket Number: No. 80.,80.
• Citation: Clark v. Carter, 12 Ga. 500, 58 Am.Dec. 485 (Ga. 1853)
• Parties: James Clark, plaintiff in error, vs. William Carter,defendant in error.
• Court: Georgia Supreme Court

12 Ga. 500

James Clark, plaintiff in error, vs. William Carter, defendant in error.

No. 80.

Supreme Court of the State of Georgia

JANUARY TERM, 1853.

Debt, in Stewart Superior Court. Tried before Judge Iverson.

This was an action from Stewart County, founded on a promissory note, a verdict for the plaintiff, and a motion for a new trial:

The facts, as shown by the record, are briefly these.

The note sued on, was in the following terms, to wit: By the first day of January next, I promise to pay James Clark, administrator of Bryan Bedingfield, deceased, or bearer, nine hundred and sixty-six dollars and thirty-seven cents, for value received. This 2d October, 1849. (Signed) William Carter. To this action, the defendant filed several pleas, and among them one in which he pleads: That the note sued on, was one given by him in renewal of two notes made by Frederick Beall and the defendant, to one Marmoduke Gresham, the then executor of said Bryan Bedingfield, (for the rent for the hotel in the town of Lumpkin, belonging to the estate of said Bedingfield,) for the years, 1846, '47, '48, and that at the date of the making said notes, to wit: on the 18th day of April, 1846, it was agreed by and between said Beall, this defendant, and the said Gresham, that the said Beall and defendant should rent the tavern, at the rate of five hundred dollars for each and every year; that is to say, the years, 1846, '7 and '8, and gave their notes for the same. And the said Gresham, upon his part, agreed to allow to said Beall and this defendant, and would deduct from the amount of their notes, whatever expenses might be incurred by said Beall and this defendant in furnishing furniture for said hotel, repairing the same, and such other expenses as might be necessary in keeping said hotel for their term of rent. And the defendant pleads that the amount paid out by the said Beall and this defendant, in conformity to this agreement, was the sum of nine hundred and eighty-nine dollars, and seven cents.

And the defendant further pleads, that the estate of said Bryan Bedingfield, deceased, was on the 1st day of January, 1847, indebted to the defendant in the sum of one hundred and twenty dollars, for the board of the widow and children of the said Bed-ingfield, which said sum he offers to set-off against the amount claimed by the said administrator. The case having been submitted to the Jury, and much testimony having been introduced by the defendant in support of his pleas, the Jury found a verdict for the plaintiff; whereupon the defendant moved for a new trial, on the grounds,

That the verdict was contrary to evidence, and to the charge of the Court,

Because the Jury misapprehended the evidence and admissions of the parties before them on the trial of said cause.

Because of surprise on the trial of said cause, in this, that the admission of the plaintiff in reference to the agreement between the plaintiff and the defendant, at the time the note sued on was given (as to the note sued on being substituted for the original notes,) was not so full as was the said agreement. And because counsel for plaintiff argued and spoke to the Jury in violation of said agreement.

And upon the ground that he had discovered since the trial, that he could prove by Burrell K. Harrison, that the furnishing of the tavern and the keeping it in repair, was to be done by the said Beall and Carter, and not by said Gresham, but was to be deducted from the rent notes. That the facts came to his (defendant's) knowledge since the trial of said cause, though he had been diligent in searching for said testimony.

And because the verdict was contrary to the weight of evidence.

The defendant then submitted the affidavit of B. K. Harrison in support of his (defendant's) affidavit as to the newly discovered...