Ellis v. The United States Fertilizing

• Decision Date: 28 February 1880
• Parties: Ellis. v. The United States Fertilizing and Chemical Company.
• Court: Georgia Supreme Court

64 Ga. 572

Ellis. v. The United States Fertilizing and Chemical Company.

Supreme Court of the State of Georgia

(February Term, 1880.)

Practice in the Supreme Court. Verdict. Evidence. Fraud. Contract. Before Judge Buchanan. Spalding Superior Court. August Term, 1879.

Reported in the decision.

S. C. McDaniEL, for plaintiff in error.

D. N. Martin; Stewart & Hall, for defendant.

Jackson, Justice.

This company, through its agent, Cole, sued W. A. Ellis and the plaintiff in error, J. T. Ellis, for the sum of two hundred and eighty-five dollars, as alleged in the complaint, but the bill of particulars shows two hundred and seventy-five dollars. The jury found two hundred any fifty dollars, with interest from the sale. A motion was made for a new trial by J. T. Ellis on various grounds; the court overruled the motion on each of them, and on that judgment error is assigned here by him.

1. The first ground of the motion is that the verdict is too small. That cannot hurt the plaintiff in error, if true, and we do not deem it necessary to make the calculation over again for the jury. If the party complaining of its being too little be aggrieved by it, let him pay what he thinks is the precise overplus that the jury did not find, and doubtless the plaintiff in the court below will accept it.

2. The second ground is that the court admitted the evidence of Cole, the plaintiff's agent, as to what the defendant, W. A Ellis, said when he made the contract for the fertilizer, contending that it was not admissible against J. T. Ellis. The facts, as set upand sworn to on the part of the company, are that the two Ellises are father and son, the *son living with his father; that he attended to the farm for his father, having the privilege to cultivate some of the land for himself; that he got the fertilizer from Cole when he had the father\'s wagons and teams, and Cole let him have it, charging it to both, and when he did so let him have it, W. A. Ellis said that it. was for both, and such was therefore the contract made between the agent of the company and W. A. Ellis. To the latter part of this evidence, to-wit, what W. A. Ellis said as to the parties for whom he bought it, the objection was made, and that evidence being admitted, error is assigned upon it. The court did right to let the evidence in. It was the contract between these two men, and what each said made it; and Cole had the right to give his recollection and version of it as well as W. A. Ellis, and the company was not restricted to W. A. Ellis as the only witness, because he was a competent witness. As to what effect it should have on J. T. Ellis, depended upon all the facts and circumstances of the case tending to show agency in the son for the father, one of which is the fact that he lived with him, managed his planting for him, and had his wagons and teams, and with them hauled the fertilizer home.

3. Error is also assigned that the court charged to the effect that where one man puts it in the power of another to cheat a third, the man thus giving the opportunity to the second must suffer rather than the third innocent man. This is the law. It is applicable to this case, if, from all the circumstances, the jury should believe that the conduct of J. T. Ellis, in allowing his son to control his teams and wagons, and manage his planting interests that year, though he did have the right to cultivate a part of the place for himself, and subsequent circumstances in regard to J. T. Ellis' ratification of the contract made by his son on terms, if this contract, in the judgment of the jury, enabled the son to cheat the company, then the charge is not without evidence, and is not hypothetical, but has basis on which torest. It makes no difference whether J. T. Ellis intended *the fraudulent use of his conduct towards his son, by the son or not, if by that conduct the innocent party was led to part with goods he would not have sold but for the...