Hooks v. Frick & Co.

• Decision Date: 31 October 1885
• Citation: Hooks v. Frick & Co., 75 Ga. 715 (Ga. 1885)
• Court: Georgia Supreme Court
• Parties: Hooks. vs. Frick & Company.

75 Ga. 715

Hooks. vs. Frick & Company.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Practice in Superior Court. Charge of Court. Principal and Agent. Payment. Promissory Notes. New Trial. Attorney and Client. Argument. Before Judge Kibbee. Laurens Superior Court. January Term, 1885

To the report contained in the decision, it is necessary only to add the following grounds of the motion for a new trial:

(1.) Because the verdict was contrary to law.

(2.) Because the verdict was the result of the directionof the court in this: The court said to the jury, " Under the evidence and law of this case, you are obliged to find for the plaintiff principal amount of notes, with interest from time the notes became due."

(3.) Because the court charged as follows: "There is no evidence to show that Frick & Company received the payment; it is true Hooks did attempt to pay the notes, but he paid it to a person not authorized to receive it."— The objection was that this excluded from the jury the consideration of the question as to whether or not Cox, as the agent of the plaintiffs who sold the property to the defendant, was authorized to receive the payment.

(4.) Because the court ruled out certain evidence of Hooks, to the effect that he had paid two of the notes in suit to R. V. Cox, agent for Frick & Company, at Macon, by shipping him shingles on his own account, and directing sale and application of the proceeds to the payment of the notes; also evidence of J. M. Stubbs, to the effect that, about the 4th or 5th of May, 1883, at the instance of Hooks, he called on Cox for the notes, and Cox told him the notes were about paid up, and he would send them to Hooks in a day or two.

(5.) Because the court overruled the defendant's motion to dismiss the attachment, such motion being upon the ground that Thomas Camp, agent for Frick & Company, made the affidavit to obtain the same as agent. [The affidavit in the record is signed " Thos. Camp, ag't for Frick & Co."]

(6.) Because of newly discovered evidence that on May 17, 1883, R. V. Cox had the notes in his possession at the house of W. W. Hall, whom he told that said notes were about paid in full, and that he was going to Dublin to settle with the defendant.

John M. Stubbs; H. E. W. Palmer, for plaintiff in error.

Roberts & Smith, for defendants

Jackson, Chief Justice.

This is an action commenced by attachment, brought by Frick & Company against G. S. Hooks, on certain promissory notes. The jury returned a verdict for plaintiffs, and defendant being denied a new trial, excepted, and assigned error on the grounds alleged in the motion therefor.

1. There was no error in the charge of the court that the jury was obliged to render a verdict for the plaintiffs, because there was no evidence before the jury but the promissory notes. It is no expression or intimation of opinion on evidence, in the sense of the statute, which prohibits an expression or intimation thereon. That prohibition applies to evidence pro and con, conflict of testimony, but not to a case where there is no evidence but the promissory notes, and no plea of non est factum or contradictory testimony. In such a case, it is the duty of the court to tell the jury what the law requires them to do on the undisputed facts before them.

2. So that the question is, did the court err in ruling out the testimony offered by the defendant?

One Cox sold an engine for ...