Formby v. Pryor

• Decision Date: 28 February 1854
• Docket Number: No. 31.,31.
• Citation: 15 Ga. 258
• Parties: Aaron Formby, plaintiff in error. vs. Wm. B. Pryor, for the use, &c, defendant in error.
• Court: Georgia Supreme Court

15 Ga. 258

Aaron Formby, plaintiff in error. vs. Wm. B. Pryor, for the use, &c, defendant in error.

No. 31.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1854.

Assumpsit, &c, in Troup Superior Court. Tried before Judge Irwin, November Term, 1853.

This was an action by Wm. B. Pryor against Aaron Form-by, for professional services, in procuring the pardon of George W. Formby, the son of defendant, who was imprisoned in the penitentiary. Upon the trial, it was proven by plaintiff below, that defendant agreed to give him $500 for his services. De-fendant below proved, that Pry or said he intended to charge nothing.

The Court charged the Jury, that "if they believed that a contract had been proven between the parties—that the declarations of Pryor to third persons, (after the contract was made between himself and Formby,) without consideration, saying that he would not charge defendant, was a nudum pactum".

To this charge, defendant below excepted, and assigned error.

Defendant farther excepted, and assigns as error, the failure of the Court, upon its own motion, and without request, to charge the Jury, that the contract sought to be inforced was void, being contrary to public policy, and immoral in its ten dency.

Walker, for plaintiff in error.

Stephens & Bigham, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

This was an action of assumpsit, brought by Wm. B. Pryor, as an attorney at law, to recover five hundred dollars of Aaron Formby, the defendant, as a fee for services to be rendered by the plaintiff, for getting George W. Formby, the son of the defendant, out of the penitentiary, where he was imprisoned for the offence of larceny.

On the trial, the plaintiff submitted his evidence, in support of his declaration; and I regret exceedingly that it becomes indispensably necessary to recapitulate the whole of it, as two of the three exceptions, grow out of the nature and extent of the proof. William Allman swore, that he was applied to by the plaintiff, at the house of the defendant, for an affidavit, to present to the Governor of Georgia, upon an application forthe pardon of George W. Formby; that defendant told witness, that he had employed Col. Pryor to hunt up evidence, for the purpose of procuring the liberation of his son; that he did not recollect the precise sum which was stipulated to be paid; but he saw plaintiff buy a dog of defendant, for five dollars, which he promised to deduct from his fee in the case. Catharine Johnson testified, that she heard Aaron Formby, the defendant, say that he was to give plaintiff five hundred dollars, to get his son out of the penitentiary. It was while he was in the State prison, and a short time before he was discharged.— Ex-Governor Crawford, examined by commission, stated that he had no distinct recollection of an application to him, while Governor, for the pardon of young Formby; but that he did remember, that while he held that office, that he had a conversation with the plaintiff, relative to the pardon of a person convicted of a penitentiary offence, committed in one of the border counties—say Troup, Heard or Carroll; and who was, at the date thereof, imprisoned in the penitentiary. He also recollects, that the pardon was urged by plaintiff, on the ground of the mental imbecility, mainly, of the prisoner. He did not distinctly remember who made the application, nor who presented the petition and affidavits; nor how often the application was repeated; nor in what year it occurred; but thinks it was during his second term in office—say 1846 or 1847.

Plaintiff next introduced the pardon of Formby, by George W. Towns, the successor of Governor Crawford, bearing date 20th day of December, 1847, which recites on its face, that he was discharged on account of his orderly and industrious conduct, as well as by reason of the earnest representations in his behalf, by respectable citizens, that the circumstances in which he was placed, were calculated to mislead him; and that the general opinion was, that he was so misled, and acted from no corrupt motive.

Jacob Johnson and George W. Johnson both testified, that they heard defendant say, in May or June, 1847, that he was to give plaintiff five hundred dollars, to get his son out of the penitentiary.

Wm. M. Latimer testified, that Col. Pryor presented a petition to the Governor, for him to sign, for the pardon of Form-by, in 1846, which he refused to do. Seaborn J. Thompson swore, that plaintiff brought George W. Formby to his tavern sometime in 1847. Judge Hill testified, that Col. Pryor accompanied him to Milledgeville, during the sitting of the Legislature, in 1847. And here plaintiff closed his case.

The defendant then offered rebutting proof. Mary Dobson swore, that she heard plaintiff say, that he intended to petition for the pardon of Formby, for that he believed that he was unjustly convicted; that the old man had paid him once, to work for him; and that when he put his hand once to the plow, he never looked back; that he meant to have Washington out of the penitentiary, and that it should never cost his father another cent; and that he would rather give the old man something than rob him in his old age, and destroy his grey hairs. She heard this about the middle of November, 1846. She farther testified, that Col. Pryor said, that he was doing what he was then doing, for the good feeling he had for the old man Form-by and the family; and that he had been paid by the old man. She did not know in what the payment consisted of. Witness is the daughter of defendant.

William G. Ray testified, that at the house of the defendant, early in the year 1847, and he thinks in the month of January, of that year, he being sent for to fill out certificates or affidavits, to be laid before the Governor, and while Col. Pryor was harnessing his horse, he heard him say, that he intended to have George W. Formby pardoned; that Fed Chandler, Thomas Tuggle and others, were as much or more guilty than Form-by; that they only wished to get Formby out of the way, that they might have free access to his wife; that it was a shame for any person to be served as Formby was, on his trial; that Giles Tompkins was drunk at the time, and made no effort in his behalf; and the reason that he (Pryor) made no stronger effort in his behalf was, because he saw the condition that Tompkins was...