Hamilton v. Stewart

• Decision Date: 25 July 1899
• Citation: 34 S.E. 123,108 Ga. 472
• Parties: HAMILTON et al. v. STEWART.
• Court: Georgia Supreme Court

34 S.E. 123

108 Ga. 472

HAMILTON et al. v. STEWART.

Supreme Court of Georgia

July 25, 1899

Syllabus by the Court.

The ruling of the court upon the admission of evidence was not erroneous. The evidence demanded a finding in favor of the defendants, and it was error to grant a new trial in the case.

Error from city court of Floyd; G. A. H. Harris, Judge.

Action by B. M. Stewart against Hamilton & Co. and others. Verdict for defendants. From an order granting a new trial, they bring error. Reversed.

Wright & Hamilton, for plaintiffs in error.

Fouché & Fouché, for defendant in error.

COBB J.

When this case was here before (31 S.E. 184), it was held that the court below erred in directing a verdict in favor of the plaintiff, it being then ruled that a letter written by the defendants to the plaintiff, in which was inclosed a statement of his account with them, and a check to cover a balance which this statement showed to be due him, and requesting that certain notes, which were included in the statement, be cancelled and sent to them, was a proposition of settlement on the terms stated in the letter; and that the collection of the check and the retention of the proceeds by the plaintiff would, after the lapse of a reasonable time raise a conclusive presumption of the acceptance of the proposition contained in the letter. When the case came on for trial the second time, the evidence for the defendant in support of the plea of settlement was substantially the same as on the former trial; it appearing from the same that a letter dated February 15, 1894, had been written by defendants to plaintiff, in which was inclosed a statement of the account, and a check to cover the balance due plaintiff as shown by the statement, and requesting that plaintiff cancel certain notes held by him against defendants and return them to defendants; also a letter of March 12th calling attention to the fact that no reply had been received to the letter above referred to; also the testimony of the two defendants to the effect that no reply had been received to their letters, but that the check inclosed in the first letter had been indorsed by the plaintiff, and paid by the bank upon which it was drawn, and returned to the defendants as a canceled check. On the second trial, the evidence in rebuttal introduced by the plaintiff was as follows: J. E Stewart testified that he was a son of the plaintiff, and went into business with him at Spring Garden, Ala., in January, 1894; that the letter of February 15, 1894, from the defendants, was received, and by his father's direction he credited the check on the larger note, indorsed, sent it forward for collection, and wrote in reply to the letter of March 12th that the notes were not settled. He was very positive that he answered this letter. He directed the letter written by him to the defendants at Rome, Ga., and mailed it. The substance of the letter was that something like two months before defendants had sent a check for the amount referred to, claiming that it was a full settlement, and asking that their notes be canceled and sent to them, and the reason for not complying with their request was that the notes were not paid in full. He never heard any more from the defendants after he wrote this letter. He is not positive that he replied to the letter of February 15th; thought that he did, but did not remember the contents. The reply to the letter of March 12th was simply that the notes were not paid off, and the reply was made the day the letter was received. The check was cashed February 16th. The only letters written were the two just referred to. The plaintiff testified that when he received the letter of February 15th he had the check credited on the note, and wrote the defendants that the notes were not paid, and that he could not return them unless they were paid off. Both letters were answered. He saw the answers written. In the answers an offer was made to credit the note with the amount of the check. He had a conversation with the defendant Blount Hamilton two or three weeks later, in which Hamilton asked him why he had not returned the notes, and he told him that they were not paid off, and he could not return them until they were settled. He also had a conversation with the defendant Alfred Hamilton shortly before the check was received, in which he made claim upon him for the whole note. Hamilton did not say whether he would or would not pay the whole note, but defendant went away, and Hamilton told him that he would send a check in a day or two. Plaintiff left under the impression that he would send check for the whole amount of the note. In the conversation had with Blount Hamilton, no demand was made for a return of the amount of the check. Plaintiff's son writes his letters, and has authority to sign his name to the same. The court directed the jury to return a verdict for the defendants. The plaintiff made a motion for a new trial upon the general grounds, and upon the grounds that the court erred in directing a verdict, and in excluding evidence offered by the plaintiff to the effect that $900 in the account against plaintiff was due on a cotton-future transaction which the defendant Alfred Hamilton had attended to...