Lawton v. Blitch

• Decision Date: 11 November 1889
• Parties: Lawton v. Blitch.
• Court: Georgia Supreme Court

10 S.E. 353

(83 Ga. 663)

Lawton

v.Blitch.

Supreme Court of Georgia.

Nov. 11, 1889.

Payment —Accounts —Instructions — Gambling Contracts.

1. In an action against the maker of a note by one who came into possession of it after it was due, where defendant pleads payment to the original payee, he is not compelled to produce in evidence the whole of an account between him and such payee, but may produce only so much thereof as will make out his defense.

2. Where in such action it appears that at the time such note became due there was a sufficientbalance to defendant's credit in the hands of the payee to pay the note, and that thereafter defendant drew drafts on the payee for nearly the amount of such balance, which were accepted, and paid, it is proper to instruct the jury that it is a general rule of law that the oldest item of an account will be first paid.

3. Losses sustained in buying and selling what are commonly called "futures "cannot be recovered in a court of law, and an item arising from such losses in an account will be stricken out.¹

Error from superior court, Bullock county; Hines, Judge.

Denmark & Adams and Dell & Wade, for plaintiff in error. T. H. Potter, for defendant in error.

Simmons, J. Lawton sued Blitch on a promissory note the title to which he obtained after it was due, dated August 2, 1879, and due November 1, 1879, for $1,110.07, principal, with interest and attorney's fees. The defendant pleaded the general issue, and for special plea he pleaded that on the 4th of November, 1879, he paid the full amount due on the note to Stubbs, the payee and holder of the same. The jury found for the defendant, and the plaintiff moved for a new trial.

1. The main ground relied on before us for reversal of the judgment of the court below was the fourth ground. That ground is, in substance, that during the progress of the trial the defendant introduced in evidence an account current for the year 1879 between him and Stubbs, the original payee of the note. Collins, a witness for the defendant, testified that the account thus introduced was only a part of the account between the parties; whereupon the plaintiff moved the court to withdraw from the consideration of the jury the part of the account thus introduced. The court refused the motion, and the plaintiff makes that refusal the fourth ground of his motion for a new trial. We do not think that the court erred in the ruling complained of. We think the defendant had a right, under the law, to introduce only so much of the account as in bis opinion made out his defense; that he was not compelled to introduce the whole account between him and Stubbs. If the balance of the account was...