Horne v. Young

• Decision Date: 31 December 1869
• Citation: 40 Ga. 193
• Parties: J. R. HORNE et al., plaintiffs in error. v. THOMAS YOUNG et al., defendants in error.
• Court: Georgia Supreme Court

40 Ga. 193

J. R. HORNE et al., plaintiffs in error. v. THOMAS YOUNG et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Novation. Evidence. Scaling Ordinance. Security, etc. Before Judge Cole. Dooly Superior Court. October Term, 1869.

Young and his wife, formerly Loduska P. Walters, sued said Horne, A. J. Pound and James O. Farrell, upon a promissory note for $1,277 85, made by said defendants, in February, 1864, and payable one day after date, to Irwin Bullock, guardian of said wife; and Young, as guardian of D. M. Walters, sued said defendants on another note exactly like the other, except that it was payable to Bullock, guardian of D. M. Walters. Horne and Pound were served. They pleaded, 1st, the general issue; 2nd, that it was expressly agreed by and between said Bullock and Home that said notes should be discharged by bonds of the Confederate States, and that, in pursuance and performance of said agreement, Home, by selling his property, procured Confederate Treasury notes, and, by direction of Bullock, converted them into Confederate certificates, and held them for Bullock's use, but did not convert them into bonds, only because the Confederate States never issued the bonds called for by the certificates; *3rd. Pond pleaded that he and Farrell were but securities for Home, on said notes, and became such upon the express understanding and agreement with Bullock, aforesaid, and that Home performed said agreement, as aforesaid; 4th, that, at the date of the notes, they were worth $13,950 00, that since that time they had lost $11,000 00 worth of property, without their fault, and claimed the benefit of the "Relief Act" of 1868.

By consent, the two cases were tried together. Plaintiffs' attorneys read in evidence the notes and closed. The defendants' attorneys offered to prove by the defendants that the facts stated in the 2nd, 3rd and 4th pleas were true. It being admitted that Bullock was dead, the Court held them incompetent witnesses. It was then shown that Bullock, as guardan of said Loduska and D. M., in 1859, or 1860, took Home's note, with one Collier for security, that in the latter part of 1863 he received a part of what was due on said note, and the balance was tendered to him in Confederate Treasury notes, that Bullock refused to accept said tender, but promised to release Collier, if Home would give other security, that the notes sued on were given for said balance, to relieve Collier from his suretyship, and that Bullock, after these notes were made, said that it was understood that they were to be discharged as pleaded above. The loss of property, in amount about as pleaded, was shown; Confederate Treasury notes were shown to have been worth, in specie, but one-twentieth of their nominal value, at the date of the notes, and it was shown that on the 15th of March, 1864, Home did procure a certificate from the agent of the Con-federate States, showing that he, Horne, was entitled to four per cent. bonds of said government, for $3,500 00, so soon as they were issued. It was also shown that Home sold provisions to a purchasing agent of said government, for Confederate Treasury notes, early in 1864, and that Young had no interest in the notes, except as husband in one case, and guardian in the other.

The Court charged the jury that if these notes were in renewal of a note made in 1859, or 1860, plaintiffs should recover the full principal and interest called for by the faces of *the notes; that Bullock, as guardian, had no right to convert the money of his wards in Confederate securities, without an order of Court, and, that in the absence of said order, they should find for the full amount of said notes, notwithstanding any agreement to accept such securities, in satisfaction of said notes; that, under the Ordinance of November, 1865, a contract in renewal of a contract which existed before June, 1865, could not be "scaled;" that these notes were neither a novation of the contract of 1859, or 1860, aforesaid, nor could they be treated as an accord and satisfaction.

The jury found for the plaintiffs, against both defendants, for the full amount of each note, and costs. Defendants' counsel say the Court erred in holding said defendants incompetent because Bullock was dead, and in each clause of his charge.

Pate & Ryan, S. Rogers and S. Hall, for plaintiffs in error, said defendants were competent under the Ordinance of 8th of November, 1865, under section 5 of the "Relief Act" of 1868, and under section 1, of Act of 18th December, 1866; guardians could invest ward's funds, in Confederate...