Leonard v. Peeples

• Decision Date: 31 March 1860
• Citation: 30 Ga. 61
• Parties: LEONARD. v. PEEPLES.
• Court: Georgia Supreme Court

30 Ga. 61

LEONARD. v. PEEPLES.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

Debt, in Murray Superior Court. Tried before Judge Crook, July, 1859.

This was an action of debt by Alexander J. Leonard against John H. Peeples, on a promissory note, of which the following is a copy, viz.:

"$424.87. One day after date we, or either of us, promise to pay John A. J. Leonard, or bearer, the sum of four hundred and twenty-four dollars and eighty-seven cents, for value received of him October 1, 1853. (Signed) John H. PeEplES, John W. Baker, H. A. Johnson."

Defendant pleaded the general issue; and further, that said note was procured by fraud and misrepresentation, in this, that said note was given in part for an interest in a claim in a gold mine in the State of California, sold by plaintiff to defendant and his associates, Baker and Johnson; and that plaintiff represented to defendant and his associates, that if they would purchase said interest they could clear three thousand dollars, and defendant relying on said statement, not knowing anything of the mine himself, bought said interest for $1,200.00, seven hundred and seventy-five dol-lars and thirteen cents of which was paid in cash, and the note sued on given for the balance; and defendant avers that said representation was false, that said mine was worth nothing, and that the consideration of said note totally failed, etc.

The testimony being closed, the Court charged the jury as follows:

1. Whatever representations were made by plaintiff at the time of the sale, or pending the negotiation, he is bound by, and that they amount in law to a warranty that the thing sold is as represented.

2. That if plaintiff represented the mine sold to be a good one (he being a miner, and having an opportunity of knowing), and Peeples had not seen and examined it, and these representations were the inducement to purchase, then it is immaterial whether the representations were fraudulently made or by mistake. The plaintiff must suffer the consequences resulting therefrom.

3. That the testimony of one witness who testifies positively to a fact, outweighs the testimony of many witnesses who testify that they have no knowledge of it.

4. If you shall believe, from the evidence, that the mine was of some value, and that it was equal in value to the amount paid, in cash, by defendant, and of no more value, then the plaintiff is not entitled to recover this note—the balance of the purchase money.

Plaintiff's counsel requested the Court to charge, that if defendant inquired of Freeman (the treasurer of the mine) as to its value, and if he exhibited his day-books showing their mining operations, and which was true, then the parties negotiated upon equal terms.

This charge the Court refused to give, holding that this testimony was introduced for the purpose of showing that defendant did not act upon the representations alone, and for no other purpose.

Plainiff's counsel further requested the Court to charge that the sale of a gold mine is peculiar, and that representations concerning them are mere matters of opinion, and did not amount to a warranty that they were as represented.

This charge the Court declined to give, but charged, that if plaintiff was a miner, and acquainted with the business of mining, and had worked the mine sold, than he is bound by any false representations made by him to defendant, as to itsvalue, and clearly so, when they are made to one who has neither seen nor examined the mine and buys upon such representations.

The Court further charged, that the doctrine of caveat emptor does not apply, and that it was not necessary to defendant's support of his plea, or defense, that he should tender back the property purchased.

The jury found for the defendant, whereupon plaintiff moved for a new trial, on the grounds—

1. That the Court erred in allowing defendant to prove by witnesses, that it was the custom and law in the mining districts of California, when a mine claim was purchased, and proved or turned out to be unprofitable or worthless, for the vendor to give up the note given for the purchase money.

2. Because the Court erred in its charge to the jury, and its refusal to charge as above stated.

3. Because the verdict was contrary to law and the evidence.

The Court refused the motion for a new trial, and plaintiff excepted.

J. A. W. Johnson, for plaintiff in error.

Walker, represented by DabnEy, contra.

By the Court.—Lumpkin, J., delivering the opinion.

Leonard sold to Peeples and two others, an occupant claim, which he held in the gold diggings of California, for $1,000. The purchaser paid, say $575.00 cash, and gave the note sued on for the balance. This action is brought to collect this note, and the defense set up is twofold—fraud in the contract and failure of consideration.

There was much testimony read on the trial, and amongst the rest, the Court allowed the defendant to prove that according to the law and custom of that country, that whenever a note was given for a gold mine and it proved unproductive, or did not turn out according to expectation, it was given up, and this is the first error complained of.

California was a State when this transaction took place in the fall of 1853, and no evidence is adduced of any such law at that time, and no such custom was established as to author-ize the Court below to recognize and act upon...