Hall v. Page
| Decision Date | 31 May 1848 |
| Docket Number | No. 47.,47. |
| Citation | 4 Ga. 428 |
| Parties | Thomas G. Hall, plaintiff in error. vs. Ebenezer Page, defendant. |
| Court | Georgia Supreme Court |
Trover in Richmond Superior Court. Tried before Judge Holt, January Term, 1848.
This was an action of Trover, for a promissory note, for seven hundred dollars, drawn by William E. Dearing and indorsed by William Dearing, and tried on this appeal.
The following is a brief of the evidence submitted to the Jury.
1. Carter Crittenden, sworn for plaintiff.
Heard plaintiff demand of defendant the note for which this suit is brought Defendant refused to deliver it—told plaintiff to "go to hell*"—does not know the precise time, but it was immediately before this suit was brought.
Cross Examined. —In a subsequent conversation, heard both parties say that the conversation above testified to was immediately preceding arrest of defendant in this suit. In this subsequent conversation, plaintiff stated that the note in dispute was given for buggies defendant had sold for him—admitted that defendant was to have ninety days to dispose of the buggies or return them—some fifty or sixty days of that time was unexpired, when the suit was brought. In another conversation between witness and defendant, defendant said he received the four buggies as rage's—that they were carried to Athens as Page's—and sold as Page's.
2. William E. Dearing's deposition read:
Who testified, that he did purchase six buggies of the defendant, Thomas G. Hall; it was, as well as he recollects, during the month of August, eighteen hundred and forty-six, in the town of Athens. They were paid for in a note at six months, made by witness and indorsed by William Dearing.
Defendant stated, at the time of making said sale, as well as recollected, that he was making said sale on account of Mr. E. Page.
The note has not been paid, and is not yet due. The last timehe saw said note, it was in possession of Thomas G. Hall. He does not know what has become of said note.
The defendant did not tell him, at the time of said trade, that part of the buggies were his own, but sold them all, as already stated, as the property of Mr. Page. The defendant gave no reason for selling them as he did.
James Hulburt, sworn for defendant, was present at a conversation between the parties at the jail in Augusta, after defendant was committed under process in this suit. The two papers now exhibited were produced there. Plaintiff admitted that the two buggies at the bottom of the invoice, were defendant's property, and that he, plaintiff, had no interest in them. He also admitted that he had given defendant ninety days to pay for his buggies. He also admitted that his claim on defendant was for the $527.25 on the invoice only.
Papers referred to, read to the Jury, as follows:
1. Invoice of articles sent to Athens by E. Page, at prime cost, if sold to net the amount clear of all charges, expenses, commissions and defalcations, viz:
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|1847 |1 Second hand leather top buggy, |$120 00|
|--------|---------------------------------------------|-------|
|July 27.|I Blue lined do. |100 00 |
|--------|---------------------------------------------|-------|
| |1 Drab Boat body. |110 00 |
|--------|---------------------------------------------|-------|
| |1 Fancy Drab, |110 00 |
|--------|---------------------------------------------|-------|
| |Harness, 6 set. as per inv. J. T. Hungerford.|82 00 |
|--------|---------------------------------------------|-------|
| |3 yards carpeting, at $1.75, |5 25 |
|--------|---------------------------------------------|-------|
| | |$527 25|
|--------|---------------------------------------------|-------|
| |Also. 1 blue lined. |110 |
|--------|---------------------------------------------|-------|
| |1 blue lined. |90 |
|--------|---------------------------------------------|-------|
| |$527.25. at 90 days. |$200 |
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2. Received, Augusta. July 28, 1846, of Thos. G. Hall, a note on James Hulbert, for three hundred dollars—also, a note on Josiah Lewis, 135 dollars, as collateral on goods sent to Athens, to be sold on my account—said notes to be returned when said Hall settles for the goods or returns the same. E. PAGE.
Amount claimed and contracted,.$527 25, at 90 days.
Conceditur—that J. Lewis' note for $135 has been paid to plaintiff, and that plaintiff is under garnishment by other credi-tors of defendant for a larger amount than the collaterals—this payment and garnishment both subsequent to the bringing of this action, and the garnishment before the payment.
Witness understood from the parties, that defendant was to have ninety days within which to make return for the sales of the buggies. When plaintiff made the admission, defendant asked him "why he had arrested him?" Plaintiff answered, that if he had made himself liable, defendant had his redress.
Cross Examined. —Plaintiff offered to settle with defendant if he would account for the $.527 25. Plaintiff said defendant was to have ninety days in which to return, the buggies or account for their proceeds. Hall was insolvent, with judgments against him, at the time he received the buggies: and plaintiff, as a prudent man, would not have parted with the title to the buggies.
[Extract relied on as follows.]
Under the charge of the Court, the jury found a verdict for the plaintiff. Whereupon the defendant moved for a new trial, upon the following grounds:
I. Error in the Court in charging the Jury, in this—
1. That while the Court allowed the principle, "that one of two joint owners of a chattel cannot maintain trover against his fellow on mere proof of demand and refusal, " the Court instructed the Jury, that the rule had no application to this case.
2. In charging the Jury that the amount for which the plain-tiff\'s property was sold by the defendant, could be recovered in this form of action, and that the defendant, in embracing in one note the proceeds of his own property and that of the plaintiff, was guilty of a wrong which could be redressed in this action.
3. In refusing to charge the jury, that the defendant being bound to account to the plaintiff for the sale of his property in ninety days, took a note at six months on his own responsibility, and could not be liable to the plaintiff in trover for that note.
II. Error in the Jury in this—
1. In finding for the plaintiff, when the evidence showed that no cause of action had accrued when the suit was commenced.
2. In rendering a verdict for the plaintiff for the full amount of the claim on defendant, when there was no evidence whatever that the two last items of the plaintiff's account were included in the note sued for.
3. In finding against the charge of the Court, it being proved that the defendant was to be allowed ninety days to return or account for the buggies or their proceeds, and the Court expressly charging that, if such were the fact, no suit could be brought till that time expired.
4. In refusing to allow the amount of one hundred thirty-five dollars, admitted to have been received on the collaterals in plaintiff's hands.
5. In giving damages for a frivolous appeal, when the verdict appealed from included both the amount mentioned in the second and fourth specifications; and when the Court, in its charge, expressly told them that the case was involved in serious difficulty.
All which grounds, except the last, the Court on argument over ruled; and if plaintiff would remit the damages for an appeal, refused to grant a new trial.
The defendant, by his attorney, excepted to the opinion of the Court on each and all of the foregoing grounds and specifications, (except the last.)
And as grounds of error, assigns: —
1. That the evidence clearly showed that the defendant was the owner of a part of the note sued on, and therefore the principle set forth in the first specification, of "Error in the Court, " applied to the case was decisive of it.
2. In that the Judge decided that the plaintiff was the soleowner of the note in question; and that the defendant could not deprive him of such ownership by blending in one sale the property of the principal with his own, but in doing so, was guilty of a wrong.
3. In that the third specification of "Error in the Court, " was overruled.
4. In that the evidence showed that no cause of action had accrued at the time of action brought.
5. In that the Judge held that there was evidence of the last two items of the plaintiff's account, sufficient to authorize the jury to include the amount in their verdict.
6. In that it was clearly proved that the defendant was to be allowed ninety days to account for, or return the property received, which time had not expired when the suit was brought.
7. In that the amount of one hundred and thirty-five dollars, received by the plaintiff on...
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