Erskine & Co. v. Duffy
| Decision Date | 23 March 1886 |
| Citation | 76 Ga. 602 |
| Court | Georgia Supreme Court |
| Parties | ERSKINE & COMPANY v. DUFFY. |
March Term, 1886.
1. A bill of exceptions to a judgment granting or refusing a new trial will not be dismissed on motion of defendant in error because it fails specifically to set forth the errors alleged to exist in said judgment, and the party be thereby deprived of a hearing, at least as to the general grounds usually relied on to obtain a new trial, or such as set out newly discovered evidence which might or should produce a different result on another trial. The motion and brief of evidence are parts of the record, and need not be set out in the bill of exceptions except by reference.
2. If the grounds of the motion plainly specify both the decisions complained of and the errors alleged to exist therein, under §4251 of the Code, this court would be bound to hear it under a general exception to the judgment granting or refusing the new trial; but if deficient in either of these particulars this court would not, under such general exception, determine it, at least as to the particular point so complained of.
( a. ) The sixth ground of the motion in this case complains of a charge given by the court, but does not specifically set forth what is the error alleged to exist therein, and cannot, therefore, be considered.
( b. ) The charge complained of appears to have been warranted by the evidence.
3. The evidence was conflicting, the presiding judge was satisfied with the verdict, and this court cannot say that he abused his discretion in allowing it to stand.
4. It is not clear that the jury disregarded that portion of the charge of the court in which he construed a letter from plaintiff to defendants, in which occurred the expression " Place the $700" (sent with the letter) " on interest," and instructed the jury that the legal effect of this letter was to give the defendants general authority to place the money mentioned for the plaintiff in the hands of some person who would pay him interest therefor. At all events, the charge itself was too broad and was not sufficiently qualified or guarded in its terms. Under the facts in evidence, this was an ambiguous expression, the meaning of which should have been left to the jury.
( a. ) For the court to treat as an instrument em bodying the terms of the contract, and to construe in such a manner as to bind the jury, every expression found in a correspondence relating to the conduct of the business in pursuance of the contract, does not seem to be in accordance with the provisions of the Code conferring the power and making it the duty of the court to construe contracts, and other provisions qualifying and restricting this power.
5. Newly discovered evidence, which is merely cumulative and tends only to show admissions made in a casual conversation between the plaintiff and a witness, will not require a new trial; especially where the statements thus proposed to be proved are directly denied by the counter-affidavit of the other party to the conversation, and where the integrity of the affiant is assailed.
( a. ) As a ground for a new trial, the discovery of new testimony is tolerated rather than favored, because of its liability to abuse and its tendency, as a general rule to mislead.
Practice in Supreme Court. New Trial. Charge of Court. Contracts. Newly Discovered Evidence. Before Judge CLARKE. City Court of Atlanta. September Term, 1885.
On June 25, 1884, Duffy brought suit against Erskine & Company on an open account for a balance of $1,247.49, principal. The defendant filed pleas of the general issue and set-off. On the trial, the issue was narrowed, so that the real point in controversy was this: The plaintiff, who was a peddler purchased goods from the defendants, and in the course of his dealings with them remitted them money at various times. They deposited his funds in the bank of John H. James to his (the plaintiff's) credit, and took certificates of deposit bearing four per cent. interest. The bank failed, and the question was, whether the defendants were responsible to the plaintiff.
On this issue the plaintiff testified, in brief, as follows: The account sued on is correct. Commenced doing business with defendants in 1880. They proposed to allow him four per cent interest on money left with them by him. He said all right. Erskine said no matter what happened, the money plaintiff left with him was all right; that somebody would always be there, and the books would show it. This arrangement continued, and the defendants would allow him interest on the surplus money he sent them. He sometimes sent them money by express and sometimes by check, and they always acknowledged its receipt by letter. The letters (except one) were destroyed. In July, 1882, he had with them something over $1,000; he bought some goods, drew out the " odd money" and left $1,000 with them on interest. Erskine told him that they would not need his money any longer, and did not want to pay interest on it and would put it in bank. The plaintiff replied that he did not care what he (Erskine) did with it, so long as he was responsible. Erskine said all right. The plaintiff never knew he had put the money in the bank or saw the certificates of deposit. Erskine never showed them to him or told him about them until the bank failed. He wrote Erskine from Smithville for $700, and the latter sent it; but he did not use it and sent it back in a few days, and wrote Erskine to put it at plaintiff's interest. They rendered him accounts in 1882, 1883 and 1884. Supposes they showed $800 as paid to him, and that the amounts for which the certificates of deposit were given appear thereof. At one time the defendants failed to allow him interest on the account rendered; he called attention to it, and they corrected it. He never made any other complaint about them. In July, 1883, Erskine gave the plaintiff a pencil memoranda, showing the balance to his credit to be about $1,575, and in a few days the book-keeper gave him a statement showing the same thing. He was not in Atlanta when the $800 were deposited in the bank to his credit and never authorized it. Denied saying to Gillespie that if he failed in this suit, he would try the banker " a rap." The defendants wrote him two letters about the failure of the bank. He replied that he did not know the bank, and looked to them for his money.
The testimony for the defendants was, in brief, as follows: The plaintiff had been buying goods from the defendant for several years and kept with them some money for goods purchased, and on any surplus to his credit they had allowed him four and a half per cent. They had settlements every year. When the settlement took place in 1882, the plaintiff had to his credit $1,082.59. They had no further use for the money, and told him early in July, 1882, that they could not allow him interest any longer, and suggested that he put the money in bank where it would draw interest. He said all right, and for the defendants to take $800 of his money and deposit it in bank. It was understood that it was to be put in James's bank. The defendants did this and took certificate of deposit in the plaintiff's name. From that time the arrangement was that, when the plaintiff sent the defendants money, if he owed them, he was credited with it; if not, it was to be put on interest for him at James's bank. Erskine denied the statement of the plaintiff that the latter said he did not care what defendants did with the money, so long as they were responsible. Statements were given to the plaintiff about the first of July in each of the years 1882, 1883 and 1884, which showed that the $800 deposited had been charged against him on the defendants' books, and that credits had not been given him thereon for other amounts which they had deposited for him. He never objected to them, except as to the item of set-off now claimed by the defendants. The statement for 1883 showed $262.28 to his credit, and he said it was correct. Neither the defendants nor their book-keeper gave to the plaintiff a memorandum in July, 1883, showing that $1,500 was due him. They gave him a statement, showing $262.28 due him. In October following, he drew out $300, thus overdrawing his account. The defendants kept their own deposits at another bank, but James's was the only one that then allowed interest on deposits, and it then was in good standing. They wrote to the plaintiff when money was deposited in bank for him. When the plaintiff wrote for the $700, one of the defendants endorsed the plaintiff's name on the certificate of deposit, drew out the money, sent him the $700 and deposited the balance. When the bank failed, a settlement was made, and one of the defendants signed the plaintiff's name to the agreement to so settle, because he thought it best; did not have special authority to do so. He did the same with others who had dealt with them as the plaintiff had.
A witness, Gillespie, testified that the plaintiff, shortly before the trial, said that if he failed to recover in it, he would " try John H. James a rap."
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