Cutcher v. Jones

• Decision Date: 31 January 1871
• Parties: JAMES C. CUTCHER, plaintiff in error. v. JOHN JONES, administrator, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 675

JAMES C. CUTCHER, plaintiff in error. v. JOHN JONES, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

New Trial. Ordinance of 1865. Interrogatories. Parol to vary Writing. Before Judge Knight. Union Superior Court. October Term, 1869.

Jones sued Cutcher upon his single bill for $1,520 23, payable "in good paper money, " made the 8th of October, 1862, twelve months after date. On it $700 00 was receipted for on the 30th of April, 1863, and $115 00 on the 30th of May, 1863. Cutcher pleaded the general issue, payment in full, and set off of $119 50.

The plaintiff read as evidence the note, and closed. Defendant offered to prove that plaintiff told him when he gave the note, that he would deduct one-seventh of it when it was to be paid, and that but for this promise he would not have given the note. This evidence was rejected. It was shown that the note was given for part of the price of certain land bought by Cutcher and Jones.

Cutcher testified, that shortly after the last credit, Jones said he wanted $600 00, and he paid him $600 00 in Confederate money, by paying it to Jones' son or wife by Jones' direction, and that Jones said he would not give up the note; but when the note was called for, it was not given up because *Jones' son had it. He said he borrowed this $600 00 from one Higgins. And Higgins testified, that Jones told him he would have to call on Cutcher for $600 00 for a specified purpose, and afterwards he, Higgins, loaned Cutcher $600 00 for that purpose, but, whether he paid it, he did not know. The land is worth from $1,500 00 to $2,000 00 in good money, and he gave a full description of it. In 1863 Confederate money was not good. At the time of the trade he paid Jones $1,000 00 in good notes, and gave this note for the balance of the agreed price.

Another witness said the land was worth from $1,500 00 to $2,000 00; another put it at $1,000 00.

Jones' daughter, who was Cutcher's wife, testified that shepaid said $600 00 for Cutcher, and called for the note, but Jones said he wished Cutcher and his son to be present before giving up the note. She said the land was worth, at the date of the trade, $3,000 00, and is now worth $3,500 00. In rebuttal, a witness testified, that the land was worth $3,000 00 or $4,000 00 in Confederate currency in 1862, and from $3,500 00 to $4,000 00, now, in United States currency; another said it is now worth $2,500 00 to $3,000 00 in United States currency. It was shown that gold, as compared with Confederate money, was worth two and a half for one at the date of the note, five for one at the date of the first credit, and six for one at the date of the second credit.

Jones testified that his land was worth $2,500 00 in specie, and he would not have sold it for less; that Mrs. Cutcher did offer him $400 00 in Confederate bonds and $300 00 in Confederate currency, but he did not take it, telling her he must have good paper money. He said Cutcher was grumbling afterwards about his note bearing interest, to which Jones replied, that at his death something would go to Cutcher which would cover the interest.

Jones' testimony was by interrogatories, and it appeared that his son and wife and his son's wife were present when he answered. His answers were objected to because of his son's present, it being shown that he was very aged and *blind and that his son and wife attended to his business for him. The objection was overruled.

Mrs. Jones testified, that when Mrs. Cutcher came with said bonds and currency and Mrs. Jones refused to accept them, Mrs. Cutcher left them on the table and went away; a few days afterwards, Jones told her to take them back, which she did. and finding Mrs. Cutcher at home, left them on her bureau. There was evidence, pro and con, as to the set off pleaded. The Court charged the jury as appears in the motion for a new trial. The jury allowed the set-off and found for plaintiff for $705 23 principal, $199 64 interest, and $......costs of suit.

Cutcher's counsel moved for a new trial upon the following grounds:

1st. Because the verdict is contrary to law and the evidence.

2d. Because the verdict is contrary to the charge of the Court in this, to-wit: The Court charged that payments made by defendant and received by plaintiff to be credited on the note, but which were not so credited, although made in Confederate money, were a full and absolute extinguishment of the note to the amount paid.

3d. Because the Court erred in refusing, upon the objection of plaintiff's counsel, to allow defendant's counsel to prove by James C. Cutcher that, at the time of the trade, Jones agreed that one-seventh part of the note given for the same should be deducted therefrom upon the settlement and payment of said note, and that this agreement induced defendant to give the note, and that but for this agreement, he would not have given the note.

4th. The Court erred in charging the jury that they had the right to rescind the contract in this case, the pleas in this case being the general issue, payment and set-off, and no relief being pleaded or insisted on.

5th. The Court erred in charging the jury as follows, to-wit: "Under the law, the necessity brought about by the effects of the war on the business of the country, the influence whichit had on the money of the country, the depreciation *which the currency suffered, and the fact that contracts were made during the time that the currency was at a discount, at a depreciated value—I say, that, under the law, a necessity arose of permitting those Confederate contracts to be reviewed, to be reopened, and to permit the juries to hear evidence as to the subject matter of the contract, in order to let them see its whole character, and then, after they have heard evidence about it, as to...