Dennis v. Sharman

• Decision Date: 30 November 1860
• Citation: 31 Ga. 607
• Parties: DENNIS. vs. SHARMAN et al.
• Court: Georgia Supreme Court

31 Ga. 607

DENNIS. vs. SHARMAN et al.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1860.

Assumpsit, in Hancock Superior Court. Tried before Judge Thomas, at the October Term, 1860.

James B. Nickelson brought suit against James H. Willey, Thomas C. Grimes, and James T. Johnson, alleging that, as partners, using the firm name of Willey, Grimes & Co., they were indebted to him the amount due on the original note, of which the following is a copy, with the credits thereon, to wit:

"Greensboro\', Ga., Oct. 24th, 1837.

"On or before the 1st day of January, 1840, we promise to pay James B. Nickelson, or bearer, eight thousand nine hundred and fifty dollars, with interest from date, for value received. WILLEY, GRIMES & CO."

"1st March, 1842, received on the within note, by James H. Willey, eight hundred and ten dollars and fifty-six cents, it being his interest in the notes and accounts of the firm of Nickelson & Willey. J. B. NICKELSON.

"1st March, 1846, received of the within note, one hundred dollars. JAS. B. NICKELSON.

"28th January, 1852, received one hundred dollars on the within. JAS. B. NICKELSON."

To this suit the defendant set up the pleas of the general issue, and the statute of limitations.

Pending the action, both the plaintiff and the defendant, Grimes, who alone was served with process, died, and William T. Sharman, administrator, and Ann M. Nickelson, administratrix of James B. Nickelson, were made party plaintiffs, and Michael Dennis, administrator of Thomas C. Grimes, was made party defendant.

On the trial of the case in the Court below, the following testimony was adduced:

Evidence for Plaintiff.

The note sued on, with the credits on it, was read in evidence.

James H. Willey, in answer to interrogatories, testified: That the credits on said note were bona tide for value received; that Nickelson, the payee, received the first two payments from the witness, and the third payment from George L. Willey, by the directions of witness; that witness, Thomas C. Grimes, and James T. Johnson, composed the firm of Willey, Grimes & Co., which was formed in October, 1837, and was dissolved about one year thereafter; that witness and said Johnson formed a partnership, under the firm name of Willey & Johnson, which was dissolved within two years; that witness then did business by himself; that afterwards, witnessand Nickelson formed a partnership under the firm name of Willey and Nickelson; that when Willey, Grimes & Co. dissolved, the goods on hand went into the concern of Willey & Johnson, and a portion of them afterwards went into the concern of Willey and Nickelson; witness and all these firms carried on business at the same place, being Nickelson\'s old stand; that when Willey, Grimes & Co. dissolved, Grimes did not draw any money from the firm, or take possession of the books, as the terms of dissolution were, that Willey & Johnson were to pay off all the liabilities of the firm of Willey, Grimes & Co.; that the credits on the note were made after the dissolution of the firm of Willey, Grimes & Co.; that the payment on the note of March 1st, 1846, was made at the desk, at the side window of the store; that witness and Nickelson\'s wife are brother and sister.

George L. Willey, in answer to interrogatories, testified: That some time between the middle of January and the first of March, the witness remitted from Madison, one hundred dollars, to be credited on a note held by Nickelson against Willey, Grimes & Co.; that the remittance was made by the directions of James H. Willey, in the year 1852, and witness does not know whether the amount was ever credited on the note or not, never having seen the original note.

Thomas Cunningham, in answer to interrogatories, testified: That Thomas C. Grimes called on witness, who was the agent of the Southern Mutual Insurance Company, to have the life of James H. Willey insured for ten thousand dollars, giving, as a reason for so doing, that his friends were bound for said Willey to a large amount; that witness understood him to refer to the debt in favor of Nickelson against Willey, Grimes & Co.; that this occurred on the 3d of January, 1850; that Grimes did obtain insurance of the life of said Willey to the amount of five thousand dollars, which was as high as the company would go; that Grimes said that as Willey was a speculating, trading man, he might be able to pay it if he lived a few years; that Grimes gave, as a reason for wanting the insurance, that he was bound for a large amount for Willey; that Grimes has told witness that he had not received any consideration for said debt, and that he did not consider himself liable to pay it, and would not pay it unless compelled to do so by law.

George O. Dawson testified: That he was well acquaintedwith James B. Nickelson; that he was a merchant in Greensboro\', and esteemed and respected as a correct man; that he did not often attend church on Sunday, but remained about his store; that the first and last credits on the note are in the handwriting of Nickelson, but the second credit is not in his handwriting; that it may be in James H. Willey\'s handwriting, but the witness does not know Willey\'s handwriting well enough to determine.

Evidence for Defendant.

The cash-book of James B. Nickelson and an almanac for the year 1846.

Isaac L. Written, in answer to interrogatories, testified: That a short time after James H. Willey sold out his store to James B. Nickelson, Thomas C. Grimes told witness that such a sale had occurred, and that Willey had gone to Madison, and that he wanted witness to go to Greenesboro' and look through the business, and trace out their transactions, and ascertain whether he (Grimes) was liable to Nickelson on an old mercantile transaction between Nickelson and Willey, Grimes & Co., which was entered into in 1837; pursuant to this engagement, witness went to Greenesboro' on the evening before a day set apart by letters of Grimes to Willey and Nickelson, and announced to Nickelson the object of his visit; Nickelson said he was aware of witness' coming, and that he would be ready next morning; that witness called next morning and found him busy; that witness again called and found him busy, and repeated his calls until about one o'clock; that Nickelson told him that there was no necessity to go through the transactions, as Grimes was in no danger; in answer to many questions by witness, Nickelson said, that the original indebtedness was between eight and nine thousand dollars, but it had been reduced by credits; that he had purchased back the house and lot, and stock of goods, and that he had loaned Willey money to carry on the business while he was selling goods, which amount was first taken from the price of the goods purchased back, and the house and lot was taken back at twenty-five hundred dollars, and that there was then a credit to go on the note of twenty-four hundred dollars, which witness thinks was for the house and lot; Nickelson further stated, that he had neglected to placethe credit on the note, but that he would have it done; that in addition to this Willey had left in his hands an abundance of good notes and available assets to pay off the entire debt, and that as fast as they were collected, the credits should be entered on the note, and that witness might go home and assure Grimes that he was in no sort of danger, and need not be uneasy; that witness\' interrogatories are taken in this case because he has been diseased fourteen or fifteen years, with indigestion, debility, frequent and violent catarrhal affections, nervous headache, with morbid excitability, and very irregular action of the heart and arteries, and did not think that he could rely with any certainty on being able to attend Court in person; that he is general agent for Mrs. Grimes, now Mrs. Dennis, in the management of the affairs of her husband\'s estate; that previous to her intermarriage with Dennis, she lived with witness, whilst he kept the books and papers of the estate, he consulted with her, and informed her generally of what was done; that the conversation with Nickelson was in 1842.

The witness stated many other things which are deemed immaterial to the issues of this case, and which are therefore omitted. The plaintiff, for the sole purpose of rebutting the evidence of Whitten, introduced the record of a case in equity in Greene Superior Court, between the parties, but the record is neither copied in the bill of exceptions, or its substance stated, and can not, therefore, be set out here.

The testimony being closed, counsel for defendants requested the presiding Judge to charge the jury, that "if they believed the payment on the note, endorsed as having been made on the 1st of March, 1846, was made on that day, and it was the Sabbath day, it could not raise a binding promise to pay the debt, so as to take it out of the statute of limitations."

This charge the Judge refused to give, and counsel for defendant excepted.

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

"That it was not necessary for the promises to pay the debt to be in writing, and that the statute of limitations of 1856 did not apply to this case; but if the payments were made on the note, by either of the parties in the firm of Willey, Grimes & Co., at the time they are dated, and withinthe statute of limitations, the law will imply a promise to pay, and it need not be written.

To this charge defendants excepted.

The jury returned a verdict in favor of the plaintiff, for the amount of the note sued on.

Counsel for the defendant then made a motion for a new trial, on the following grounds, to wit:

1st. Because the Court erred in refusing to charge as requested by counsel for defendants, as hereinbefore set forth.

2d. Because the Court erred in charging the jury as hereinbefore stated.

3d. Because the verdict for the plaintiff is decidedly and strongly against the weight of evidence.

4th. Because the verdict is...