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

November 11, 1889

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 his 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 material, and would serve to aid the plaintiff in making out his case, he had a right to introduce it himself, and not compel the defendant to introduce it. Without elaborating this point further, we content ourselves with citing the authorities upon this point cited in the authorities upon this point cited in the case of Jones v. Grantham, 80 Ga. 477, 5 S.E. 764.

2. The next ground relied on is the fifth, which complains that the court charged that the general rule of law is that the oldest lien and the oldest item in an account will be first paid the presumption being that such was the fair intention of the parties. The error complained of was that this charge was not applicable to the facts of the case. It is...