Falkner v. Behr

• Decision Date: 31 October 1885
• Citation: 75 Ga. 671
• Parties: Falkner. vs. Behr.
• Court: Georgia Supreme Court

75 Ga. 671

Falkner. vs. Behr.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Recoupment.Evidence.Charge of Court.Onus Pro-bandi.Witness.Before Judge Simmons.Bibb Superior Court.October Adjourned Term, 1884.

To the report contained in the decision, it is necessary to add only the following: The defendant pleaded a recoupment for $994.28 for failure of the plaintiff to discharge the duties for which he was employed, viz., to keep an accurate and complete account, in the manner usually employed by merchants, of all money paid him during his service on account of sales made to the defendant's customers, and that, from January 26, 1883, to May 1, 1883, the plaintiff appropriated to his own use $994.28, which he collected and should have turned over to the plaintiff.

In explanation of the fifth division of the decision, it may bo stated that the court permitted the plaintiff, over objection of the defendant, to prove by a witness his general good character.

W. Dessau; Hill & Harris, for plaintiff in error.

L. N. Whittle; Hardeman & Davis, for defendant.

Jackson, Chief Justice.

Behr sued Falkner for wages as clerk.Falkner pleaded, by way of recoupment, damages to himself by his clerk amounting to more than his wages: This made the issue between them, and under the court's charge the jury found for Behr the full amount of his wages, and against the plea of recoupment.Thereupon, on the denial of a new trial, Falkner brought the case here.

1.The evidence is sufficient to support the verdict, and it is not contrary to evidence, law, equity, etc.

2.The court declined to charge the jury as follows: " The defendant files a plea of recoupment in which he says that Behr is indebted to him, because, he says, Behr failed to keep true accounts of stock sold and money received and to turn over to him the money so received.It is not necessary that the proof to establish the plea should be such as would be required to convict Behr of a criminal charge.It is sufficient if it be established by the ordinary rules of testimony in civil cases."The court gave the substance of this charge to the jury, by telling them repeatedly that the evidence necessary on the issue was what was satisfactory to the jury, and explaining fully the rule as to preponderating evidence in civil cases, thus distinguishing it from the evidence to convict, for crime, which must satisfy their minds beyond a reasonable doubt.This court has often decided that the charge need not be in the language requested.It is enough if the general charge gives it in substance.

3.The court also, in effect, charged the jury that, if the plea to recoup was made out and exceeded the plaintiffs proved wages, the defendant could recover whatever it amounted to, which is the substance of the other request not given.

4.The next ground is that the court charged as follows: " If, on the other hand, you find that Behr did not have sole control and management, and that Falkner shared it with him, or other clerks or employes had management and control of the goods, then I charge you he must make positive proof of Mr. Behr\'s negligence or appropriating to himself; and whatever amount that is, Mr. Falkner would be entitled to recover out of Behr;"the court having charged the jury in reference to the plaintiff\'s case, he must make it out to the satisfaction of the jury.

It is urged before us that the court erred in using the words " positive proof, " counsel insisting that the word " positive " antagonizes circumstantial evidence, and that thus the court excluded that class of evidence.The legal, opposing sort of evidence to " positive "...