Kennedy v. Baggarley

• Decision Date: 17 November 1914
• Docket Number: (No. 5569.)
• Citation: 84 S.E. 211,15 Ga.App. 811
• Parties: KENNEDY. v. BAGGARLEY.
• Court: Georgia Court of Appeals

84 S.E. 211

15 Ga.App. 811

KENNEDY.

v.BAGGARLEY.

(No. 5569.)

Court of Appeals of Georgia.

Nov. 17, 1914.

Rehearing Denied Feb. 11, 1915.

(Syllabus by the Court.)

Error from Superior Court, Pike County; R. T. Daniel, Judge.

Action by A. W. Baggarley against J. L. Kennedy. Judgment for plaintiff, and defendant brings error. Affirmed.

C. J. Lester, of Barnesville, for plaintiff in error.

J. F. Redding, of Barnesville, for defendant in error.

RUSSELL, C. J. Baggarley brought suit in a justice court against Kennedy, alleging, in his petition attached to the summons, that the defendant was indebted to him in the sum of $83.46. In the petition certain notes which the plaintiff had previously given to the defendant were described, and certain payments made thereon by the plaintiff to the defendant were set out The petition alleged the indebtedness to be "a mistake in calculation in the above notes and a mistake in calculation when he had final settlement." The defendant filed a lengthy plea, in which he denied owing the plaintiff any sum whatever, and set up that the transaction between them was as follows: During the year 1908 the plaintiff approached the defendant for a loan of money to pay for certain land which the plaintiff had bargained for. The defendant refused the loan, but finally agreed with the plaintiff to purchase the land on his own account and resell it to the plaintiff for an agreed price; and, in pursuance of the agreement, he bought the land and took a deed thereto from the person with whom the plaintiff had made the tentative agreement to purchase. The plaintiff then entered into a certain "lease" contract with the defendant (a copy of which is attached to the defendant's plea), in which the plaintiff agreed to pay the defendant a certain amount annually for four years as rental of the property, and to pay all the taxes assessed against it, and the defendant bound himself to convey the land to the plaintiff on the completion of those payments. In December, 1911, the plaintiff and the defendant had a full and final settlement. The plaintiff having negotiated a sale of the land, the defendant allowed him to take up his notes, "in order that he could perfect sale to the party to whom he had bargained the place." By consent the case was appealed to the superior court, and the jury there found a verdict in favor of the plaintiff for the amount sued for and interest, amounting to $12.77. The defendant filed a motion for new trial, upon the usual general grounds, and upon the additional ground that the court erred in charging the jury upon the subject of usury. It is insisted that the charge was not adjusted to the issues in the case and was not authorized by the pleadings.

Upon the trial the plaintiff testified that the notes described in his petition were given by himself to the defendant for money borrowed; that there was a mistake in the calculation of interest, and he had beencharged too much interest, he did not know the exact amount; that he had never bought any land from the defendant, but that he borrowed money from him to pay for land and gave him the notes; that before the notes became due he sold the land, and the defendant allowed him to take up the notes and allowed him a discount of 8 per cent. on them; that the defendant took a deed to his land for the purpose of securing the payment of the notes described. The plaintiff introduced in evidence the original notes, and the receipts and paid checks representing the payments made thereon. The defendant testified to substantially the same matter set up in his plea; that is, that he had never loaned the plaintiff any money, but that he had bought land for which the plaintiff had previously bargained, and resold it to the plaintiff. He contends that under the evidence the verdict was erroneous. We think to the contrary. The jury had the right to believe that the notes represented a loan made by the defendant to the plaintiff. All the circumstances in the case seem to bear out this contention. The amount of money advanced by the defendant was considerably less than the value of the land, and was the amount represented by the notes which the defendant alleged were given in payment of rental on the land. The "lease" contract contained a clause binding the defendant to convey the land to the plaintiff on the payment of four years' rental, and this four years' rental was the exact amount which plaintiff claimed to have received from the defendant, plus the usurious interest which he stated in his testimony the defendant had charged him. The defendant was never in possession of the land, never paid any taxes thereon, and, so far as the testimony discloses, never exercised any rights of ownership over it. The plaintiff swears positively that the money was merely a loan, and that the defendant never once mentioned buying the land and...