Collins v. Loyd

• Decision Date: 31 August 1860
• Citation: 31 Ga. 128
• Parties: COLLINS. vs. LOYD.
• Court: Georgia Supreme Court

31 Ga. 128

COLLINS. vs. LOYD.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

Assumpsit, in Fulton Superior Court. Tried before Judge Bull, at the April Term, 1860.

James A. Collins brought an action of assumpsit in Fulton Superior Court against James Loyd, to recover the sum due on a promissory note given by the defendant, payable to the plaintiff, dated the 27th of July, 1851, and due the 25th of December, 1852 for eight hundred dollars, with interest from the date of the note. There was a credit endorsed on the note of "forty dollars and twenty-five cents, amount of J. Gilbert's note, " and dated June 1st, 1857.

The defendant pleaded a set-off against the plaintiff's demand, which set-off consisted of a payment, by the defendant, for the use and benefit of the plaintiff, and at his request, of three hundred and fifty dollars, to one Joshua Gilbert.

On the trial of the case the plaintiff introduced, in evidence, the note sued on, and closed.

The defendant then proved by Joshua Gilbert, that on the 13th of February, 1855, the defendant paid him, for the plaintiff a physician's bill of two hundred and eighty-one dollars, or about that sum; that this amount included seventy-two dollars due him, by Miss Sarah Venable, and four dollars due him by Miss Jane Venable, and twenty-four dollars due him by Miss Julia Bolton, but which was all charged to the plaintiff; that plaintiff told the witness to settle with defendant, and it would all be right; the plaintiff and defendant were brothers-in-law, and had been in partnership a number of years before the transaction between defendant and witness. In answer to one of the cross-interrogatories, to wit: "Did defendant pay you anymoney? If so, how much? Was not the principal amount paid you, paid in an account you owed Collins & Loyd?" the witness stated: "Defendant paid me some money, the amount he does not recollect. I owed Collins & Loyd an account; the amount I do not recollect. It was a small account."

The defendant then closed; and the plaintiff, in rebuttal, offered to prove by William R. Venable, "That the firm of Collins & Loyd was dissolved previous to the 21st of October, 1847, and that shortly after this suit was commenced the defendant told witness that the note sued on was given for the purchase money of a city lot in Atlanta." Counsel for defendant objected to the evidence, and the objection was sustained, and the evidence repelled by the Court, the plaintiff excepting.

The plaintiff then offered in evidence the original receipt, of which the following is a copy (the execution of the same having been proven), to wit:

"Atlanta, Ga., Oct. 21st, 1847.

"Received of Collins & Loyd, the account against Joshua Gilbert for three hundred and nine dollars, thirteen cents, which I, James Loyd, am to pay Jas. A. Collins one-half of the proceeds, when collected; and also one account on A. H. Green, dec'd, for one hundred and twenty-nine dollars and seventy-three cents. JAMES LOYD."

To the introduction of this receipt counsel for the defendant objected, and the Court excluded the evidence, and plaintiff excepted.

The plaintiff then introduced as a witness the Hon. Wm. Ezzard, who testified: "That in 1848, he, as administrator of A. H. Green, deceased, paid to the defendant the sum of one hundred and thirty dollars and twenty-six cents, on an account in favor of Collins & Loyd against the said deceased." Counsel for defendant moved to withdraw said testimony from the consideration of the jury, and the Court sustained the motion, and plaintiff excepted.

The presiding Judge, amongst other things, charged the jury—

"That if the accounts of Sarah Venable, Jane Venable and Julia Bolton were charged to the plaintiff by Gilbert, and that the same were paid to Gilbert by defendant on a settlement between the defendant and Gilbert, the jury wereauthorized to infer, that the plaintiff was bound for the amount of the accounts, at the time they were paid, without other evidence of the fact;" to which charge plaintiff excepted.

The jury returned a verdict in favor of the plaintiff for the sum of seven hundred and ninety-two dollars and fifty-four cents, with interest from June 1st, 1857, with cost of suit.

Counsel for the plaintiff then moved for a new trial in said case, on the following grounds, to wit:

1. Because the Court erred in repelling the evidence of William R. Venable, offered by the plaintiff, as hereinbefore stated.

2. Because the Court erred in not admitting in evidence the receipt given by defendant, as aforesaid.

3. Because the Court erred in withdrawing the testimony of William Ezzard from the consideration of the jury.

4. Because the Court erred in charging the jury as hereinbefore given.

5. Because the verdict of the jury was strongly and decidedly against the weight of evidence in said case.

To this motion for a new trial, was added, by amendment, another ground, to wit:

6. Because, since the trial, and since the adjournment of the Court at which the rule nisi was applied for, the defendant has discovered that he can prove by Cicero H. Chandler, "that the defendant, James Loyd, told said Chandler that he, Loyd, only claimed a deduction of between one hundred and thirty and one hundred and forty dollars from the note sued on in said case;" which testimony did not come to the knowledge of plaintiff until after the trial, and after the application for a new trial.

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