Leonard v. Mixon

• Decision Date: 13 May 1895
• Citation: 23 S.E. 80,96 Ga. 239
• Parties: LEONARD v. MIXON et al.
• Court: Georgia Supreme Court

23 S.E. 80

96 Ga. 239

LEONARD

v.MIXON et al.

Supreme Court of Georgia.

May 13, 1895.

Evidence—Habit of Witness in Doing Business —Instructions.

Although a witness may have no distinct and independent recollection of the details «>f a fact occurring in the course of the routine of his business, he may testify to his fixed and uniform habit in such cases, and state that he knows what he did in a given transaction was in accordance with that habit. The probative value of such evidence was for the jury to determine, and therefore it was error for the court to prevent them from giving it due consideration, by charging that: "When a witness swears to a thing which he knows to be true only from his habit of doing business, such statement is not to be taken as evidence. What the jury wants is facts, not conclusions drawn from the habits of a witness." The more especially is this error when the evidence in question was admitted without objection. (Syllabus by the Court.)

Error from superior court, Wilcox county; C. C. Smith, Judge.

Action by D. B. Leonard, surviving partner of Lewis, Leonard & Co., against James M. Mixon and others. Defendants had judgment, and plaintiff brings error. Brought forward from the last term. Code, §§ 4271a-4271c. Reversed.

W. L. Grice, for plaintiff in error.

Hal Lawson and Cutts & Hixon, for defendants in error.

SIMMONS, C. J. This was an action upon a promissory note dated November 1884, payable to Lewis, Leonard & Co., and signed by James M. Mixon, T. L. Griffin, and J. R. Lacy. Mixon pleaded not indebted, and payment by giving a new note on February 11, 1885, with other sureties. There was a verdict in his favor, and the plaintiff made a motion for a new trial, which was overruled, and he excepted. W. L. Grice, the plaintiff's attorney, testified at the trial that subsequently to the giving of the note of February 11, 1885, referred to in the plea, the note sued upon, with other notes of Mixon, was placed in his hands for collection, and that on January 27, 1891, he wrote to Mixon that he had the notes for collection, giving a full statement of each note; that he stated who signed each note, giving the date, time of maturity, rate of interest, etc.; that he received in reply certain letters introduced in evidence, one dated January 28, 1891, and another August 28, 1891, in which Mixon acknowledged the receipt of his (Grice's) letters, and stated that be would pay the notes. The witness further testified that he had served Mixon with notice to produce the...