Hunt v. Hardwick & Co.

• Decision Date: 30 September 1881
• Citation: 68 Ga. 100
• Parties: Hunt. vs. Hardwick & Company.
• Court: Georgia Supreme Court

68 Ga. 100

Hunt. vs. Hardwick & Company.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Evidence. Fraud. Partnership. Contracts. Before Judge fain. Whitfield Superior Court. April Term, 1881.

Reported in the decision.

W. C. Glenn; Johnson & McCamy, for plaintiff in error.

J. E. Shumate, for defendants.

Speer, Justice.

Defendants in error brought their suit against plaintiff in error upon a promissory note for the sum of seven hundred dollars, dated on 11th December, 1875, and due 1st October, 1876, with certain credits thereon, said note payable to II. A. Lowry or bearer.

To the suit defendant below pleaded that the note is now and ever has been the property of the payee, H. A. Lowry. That it was given for a one-half interest in a stock of drugs, medicines, etc., belonging to the defendant, and Lowry, the payee of the note, who had been doing business under the name of Hunt & Lowry. That on the trade defendant bought on the representation of Lowry that there had been an inventory taken of the stock just before the trade, and that it amounted to over two thousand dollars; that there was enough owing to the partnership to pay all its debts. That defendant had no means of knowing how much the stock amounted to without taking an inventory himself. That he relied on the assurance the inventory had been taken. That the books were locked up and the key to the safe was inaccessible at the time of the purchase. That defendant himself had lived at Rome, and had only been in Dalton two or three times since the business of Hunt & Lowry had been carried on, and then only for a few days at a time. Had all confidence in Lowry, his partner; believed his representations, and on them traded. That in fact there was only about $1, ooo.co worth of drugs, medicines, etc., in the stock. That it was false there had been another inventory taken; that the accounts on the books, of which there was only a small amount, were nearly all worthless, and that there was on the books, which he had to pay, debts due by the partnership of nearly six hundred dollars.

Under the evidence and charge of the court, the jury returned a verdict in favor of the plaintiffs, whereupon defendant below made a motion for a new trial, which was overruled by the court, and defendant excepted.

The grounds of error in the motion were:

(1.) That the court erred in permitting counsel for plaintiff below to ask D. G. Hunt, defendant, when upon the stand as a witness, the following question: " What amount of goods were in the store at the time of the sale to Lowry?"

(2.) Because the court erred in charging the jury as follows: "The assertion, or representation, by the selling party as to its value and condition, if untrue, will not relieve the buyer of the obligation to inform himself from an examination for himself of his own business, provided he had equal facility to inform himself and was not relying on the information of his partner, and in determining the question of facility and ability to get correct information you may consider any evidence, if there be such, showing a superior knowledge as to the character and sort of business about which they are dealing If you find that the representations made by the selling party were what he learned from the mutual agent, Garlington, and from the testimony you believe that Hunt knew that this information came from Garlington, then there would be no misrepresentation, if Lowry correctly represented what Garlington had told him."

(3.) Because the jury found contrary to the following charge of the court: "If Lowry represented any thing as a fact, he is bound by the representation, whether he made it honestly or dishonestly, and it makes no difference whether he told what Garlington had said or not, unless he told Hunt he only spoke from what Garlington had told him. The strictest good faith is required among partners, and what would not amount to fraud as to third persons may be such as to a partner."

(4.) Because the verdict...