Evans v. Collier

• Decision Date: 25 October 1887
• Parties: Evans v. collier.
• Court: Georgia Supreme Court

4 S.E. 266

79 Ga. 319

Evans

v.collier.

Supreme Court of Georgia.

October 25, 1887.

1. Payment Defense of—Instructions.

Plaintiff sued on account for work and labor performed. Defendant pleaded (1) the general issue; (2) payment; (3) accord and satisfaction. The court instructed the jury: " If you believe from the evidence that the plaintiff has been fully paid for such services as he is shown to have rendered the defendant, as set up in defendant's second plea, he cannot recover, nor can his lawyers recover for their fees." Held no error.

2. Infancy—Action for Services—Conclusiveness op Judgment.

Plaintiff sued on account for work and labor performed from 1879 to 1884. In 1883 he sued defendant before a justice on account for work and labor, and took judgment. Held, under Code Ga. § 8263, relating to suits by infants, that plaintiff was bound by the judgment if he was an infant at the time, and sued without a next friend or guardian, and could not recover for services back of time of bringing the suit before the justice.

Error from city court of Atlanta; Van Epps, Judge.

Action upon account for work and labor performed. Defendant pleaded the general issue, payment, and accord and satisfaction. Trial. Verdict for defendant on first and second pleas; for plaintiff, on the third. Motion by plaintiff for new trial overruled; judgment; and plaintiff brought this writ.

Arnold & Arnold, for plaintiff in error. Hillyer & Bro. and Hulsey & Bateman, for defendant in error.

Blandford, J. Joseph Evans brought his action upon an account against George W. collier, for work and labor done from the first of January, 1879, to the first of January, 1884, at $20 per month, $1,200. To this action the defendant filed three pleas: (1) The general issue; (2) a plea which he called a plea of payment; and (3) a plea of accord and satisfaction. Upon the trial of the case, the jury found for the defendant on the first two pleas, thereby finding for the plaintiff on the third plea. A motion for a new trial was made by the plaintiff on several grounds.

1. The first special ground of the motion was as follows: "Because the court erred in charging the jury as follows: ' If you believe from the evidence that the plaintiff has been fully paid for such services as he is shown to have rendered the defendant, as set up in defendant's second plea, he cannot recover, nor can his lawyers, in this view of the case, recover anything for their fees.' The above charge excepted to because too general in this case. It does not except payments when the plaintiff was a minor, nor does it except the payment made after suit was brought, by which his attorneys were deprived of their fees." We do not see how this charge is too general. The court charged the jury that, if they were satisfied from the evidence that he had been fully paid off for all the services he had rendered, he could not recover. While that is a very general charge, it was sufficient, and left it to thejury to say whether the evidence authorized them to find that the plaintiff had been paid off for his services rendered up to that time. It may be well to remark here that the second plea is a duplex plea, —it is bad for duplicity; and if the plaintiff had specially demurred to it, the court would doubtless have stricken it; but being good in substance, and not being demurred to, we will have to treat it as a good plea.

2. The next error complained of is "because the court erred in charging the jury as follows: 'If the suit was on a special contract of Evans, made while a minor, with collier, to pay him so much per month for bis services, Evans would be bound in law to include in that one suit all that was due him under that special contract, and the judgment would conclude him until reversed or set aside; that is, it would be conclusive that the judgment...