Mapp v. Phillips

Decision Date31 January 1861
Citation32 Ga. 72
PartiesMapp . vs. Phillips.
CourtGeorgia Supreme Court

Trover in Bibb Superior Court. Tried before Judge Lamar at the November Term, 1860.

This was an action of Trover, commenced on the 2d day of August, 1859, by Eaton J. Mapp, against William R. Phillips, to recover damages for the alleged conversion of a negro man slave, named Isaac.

On the trial of the case in the Court below the following testimony was adduced, to-wit:

Evidence For The Plaintiff.

John Rutherford testified: That he once owned the negro boy, Isaac, sued for in the action, and as the negro was in the habit of getting drunk, and did not therefore suit him, he swapped him to Gilbert, as the agent of the plaintiff, for a negro by the name of Washington; that Gilbert and Mapp both told witness that Gilbert was Mapp's agent for the purpose of the exchange of negroes; that Mapp made a bill of sale to witness for the negro which Gilbert as Mapp's agent swapped for Isaac; that Isaac was worth $1,100; Gilbert was afterwards trying to sell Isaac, and claimed to be Mapp's agent for that purpose, but witness never heard Mapp say that he had authority to thus dispose of the negro, but supposed that Gilbert had the authority to sell the negro, as Mapp had recognized his agency in the exchange aforesaid.

James V. Grier testified: That Gilbert, as Mapp\'s agent, hired the negro in dispute to Grier & Masterson during the year 1858, and received the hire therefor, until he, Gilbert, ran away; that some time after Bishop sold the negro to Cox, the witness saw Mapp in Americus and in Macon looking for Bishop, to get the money for which he sold the negro to Cox; that Mapp also told witness that he went to Alabama partly on the same business; that Mapp told witness that he had authorized Bishop to sell the negro to Gen. Armstrong, and that if he could get the money which Cox paid Bishop for the negro, he would be satisfied; that when witness first saw Bishop he told the witness that he was Mapp\'s agent, and he also showed witness a letter which Mapp had sent to Gen. Armstrong.

Thomas J. Cox testified: That as the agent of Phillips, the defendant, he bought the negro in dispute, from Alfred Bishop, and paid him $1,300 for him; that witness put the negro in the guard house, and that Phillips sent the negro to New Orleans, where he was sold.

Counsel for the plaintiff' objected to the testimony of Rutherford as to the sayings of Gilbert unless his agency was established, which objection was overruled by the Court, and plaintiff excepted.

Evidence For Defendant.

Giles Griswold, in answer to interrogatories, testified: That about the last of April, or the first of May, 1859, at Griswoldville, in Jones county Georgia, the plaintiff, Mapp, told the witness that he gave Alfred Bishop a power of attorney to sell the negro in dispute, and that he had come to Griswoldville to make inquires for Bishop, knowing that Bishop had been, or was still agent for Samuel Griswold; that after plaintiff learned that witness had not heard of Bishop for some time, he expressed fears that he would lose the money for the negro; that plaintiff also said he was going to Macon to enquire about Bishop, but did not say for what.

Thomas J. Cox being recalled by the defendant, testified: That as the agent of Phillips, he bought the negro from Bishop on the 4th of March, 1859; that Bishop told witness that he was Mapp\'s agent, and was by him authorized to sell the negro to any person, that he had come to sell or complete a contract made by Gilbert with Gen. Armstrong, and that if Armstrong did not take the boy, he, Bishop, was authorized to sell him to any one who would give $1,300 for him; that Bishop referred witness to Gen. Armstrong for his authority; that witness went to Armstrong, who read to him a part of a letter from Mapp to him, which Bishop had brought, and witness then went to Bishop and made the trade, as he has already testified to, in behalf of plaintiff; that Bishop made, at the time, the following bill of sale to-wit:

" Georgia, Bibb County:

" Received of T. J. Cox $ 1, 300, in full payment for a certain negro man named Isaac, light complexion, twenty-four years of age, which boy I warrant to be sound in body and mind. I also warrant and defend the right and title of said Isaac, and a slave for life. This March 4th, 1859.

"ALFRED BISHOP,

" Agent for E. J. Mapp.

" Witness:

" Job H. Cherry."

Counsel for the plaintiff objected to all the testimony relative to the sayings of Bishop as to his authority to sell the negro, and as to any and all statements of Bishop not strictly within the scope of the letter given him by Mapp to Armstrong.

evidence for the plaintiff in rebuttal.

Gen. James W. Armstrong testified: Gilbert, as the professed agent of Mapp, bargained the negro in dispute to the witness at $1,250; that Gilbert said he would take the responsibility of selling the boy to me; that the negro was left in my possession until Mapp could be heard from; that witness waited to hear from Mapp for two or three weeks; that in the meantime Gilbert ran away; witness then wrote to Mapp about the trade, and some time thereafter Alfred Bishopbrought to witness a letter from Mapp, and the witness finding that the boy was a drunkard and a gambler, and would not suit him, and that the price was raised to $1,300, he delivered the boy to Bishop; that on the same day, and before Cox bought from Bishop, Cox called on witness to know what authority Bishop had to sell the negro, when witness got the letter aforesaid, and read the material points to him; that this letter was the only authority which Bishop purported to have from Mapp to sell the boy to me, and it was upon the authority of the letter that witness gave the boy up to Bishop; that Gilbert had had the boy in Macon for sale some time before witness bargained for him; that the following was a copy of the letter, to-wit:

" February the 25th, 1859.

" Col. Armstrong:

Sir: —I received your favor of the 10th instant, stating that Mr. Gilbert had sold you my boy Isaac for $1,250, for which he had no authority for so doing; but in my response to you, in reply to yours of the 10th, I gave you the full particulars of all the circumstances, which I think will give full satisfaction to you, etc. I now send Mr. Alfred Bishop, fully authorized to represent me in all the particulars to sell you Isaac, to receive the pay, to make you a full and legal bill of sale, or to receive him and bring him home; in short, to transact any business on that subject for me. I think when you see Mr. Bishop and talk with him on the subject, that you will be satisfied on the subject. Now, sir, any trade or settlement that Mr. Bishop makes with you in relation to the boy Isaac, in writing or word, for me, you may consider it full and legal, as he is my agent, and is ready and willing to testify to the illegality of the sale of the boy to you at the time you bought him, etc. I hope you and Mr. Bishop will settle without any further delay or trouble.

" Respectfully yours,

" E. J. MAPP.

" I send in the care of Mr. Bishop.

" P. S. Col.: If you and Mr. Bishop should not agree interms of the price of the boy, please deliver him up to said Bishop to bring him home for me, and you will much oblige,

" E. J. M."

Upon these facts, and under the charge of the Court, the jury returned a verdict for the defendant.

Counsel for the plaintiff then moved for a new trial, predicated upon the following grounds, to-wit:

1. Because the Court erred in overruling the objection of plaintiff's counsel to the testimony of Rutherford as to the sayings of Gilbert and his doings.

2. Because the Court erred in admitting (over the objection of plaintiff's counsel) the testimony of Cox as to the sayings of Bishop in regard to his authority from Mapp to sell Isaac to any person.

3. Because the Court erred in admitting in evidence the statements of Bishop, which were not strictly within the scope of the letter given to him by Mapp to Armstrong.

4. Because the verdict is decidedly and strongly against the weight of evidence.

5. Because the verdict is against law and evidence.

The presiding judge overruled the motion and refused the new trial, which decision is the error complained of in this case.

Bailey & DeGraffenreid for plaintiff in error.

L. N. Whittle for defendant in error.

By the Court.—Jenkins, J.,...

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