Mccurdy v. Terry
| Decision Date | 31 August 1861 |
| Parties | David R. McCurdy, plaintiff in error. vs. Wm. Terry, defendant in error. |
| Court | Georgia Supreme Court |
Action of Assumpsit. In Forsyth Superior Court. Tried before Judge George D. Rice. At August Term, 1860.
The following is a condensed statement of the facts and questions presented by the voluminous record in this case, to-wit: Some short time before the 19th of June, 1857, Samuel Rawlins, who was a keen, shrewd trader, residing in the county of Gwinnett, sent a message to one James F. Cockerell, to bring old man Terry over to Rawlins' house, to a big hard-shell meeting, which Rawlins afterwards said he knew was not to take place when he sent the message. Cockerell, however, did go from Terry's residence, in Forsyth county, to Rawlins', in company with Terry, and on the 19th of June, 1857, Rawlins sold to Terry a negro man by the name of Harry, about fifty or fifty-five years of age, and worth, if sound, about $400 00 or $450 00, for the sum of $800 00. The trade was closed by Terry executing and delivering to Rawlins, sixteen promissory notes, for $50 00 each, all bearing date, the day and year aforesaid, to become due the 25th December, 1857, and payable to Samuel Rawlins, or bearer, and by Rawlins executing and delivering to Terry, a receipt, of which the following is a copy:
Terry was a very old man, being at the time, eighty or ninety years old, whose business was transacted by his sons. The sale of the negro occurred on Friday, at Rawlins' residence, in Gwinnett county, and the negro was left with Rawlins, as Cockerell and Rawlins' son testify, because his clothes were at his wife's house, and Terry could not convenientlycarry him home, as Cockerell was in the buggy with him. Rawlins was to send the negro to Terry on the Friday following the trade, but in consequence of the negro\'s affliction with flux, or bloody dysentery, which was then prevalent in Rawlins\' family, he concluded to send the negro to Terry on Monday, as he himself avowed, for fear the negro might die. The negro was very sick on the way, and was discharging blood from his bowels. On Wednesday a physician was called to see him, who testified that he was very sick, and must have had flux or bloody dysentery, for a week or ten days previous to that time. The negro did no work after he came to Terry, and continued sick for a short time and died. Pending his sickness two of Terry\'s sons went to see Rawlins, and made an effort to induce Rawlins to rescind the trade, but he refused to do so. Rawlins\' son, and one of his tenants, assert that the negro was sound when the trade was made, others who knew the negro, testified that they did not deem him a sound or healthy negro.
On the 10th day of August, 1857, Rawlins sold or pretended to sell, the notes on Terry to the plaintiff, David R. McCurdy. The terms of the sale, as testified to by McCurdy, himself, were: that Rawlins gave him the notes on Terry, and one hundred dollars in cash, for his, McCurdy's, for $850 00. Terry was good for the sum of his notes, and possessed much more property than McCurdy. McCurdy testified that he received the notes in good faith, and had no notice of any defence to them, whilst the defendant proved by one witness that McCurdy said that he did not care a damn whether he collected the notes or not, that Rawlins had only hired him to collect the notes and agreed to give him fifty dollars for his services.
Under his plea of failure of consideration, the first proof offered by the defendant was evidence going to show the fraud and deceit practised by Rawlins in the sale of the negro to Terry. This evidence was objected to by the plaintiff's counsel, on the ground that such a defence could not be set up until it was shown that McCurdy bought the notes after they were due, or that he had notice of the defence.
The objection was overruled, and the evidence admitted, upon a statement by defendant\'s counsel, that he expected to show notice to plaintiff of the failure of consideration. This decision of the Court was excepted to by counsel for plaintiff.
The defendant also offered in evidence the depositions of Robert Watson, to the reading of which plaintiff's counsel objected on the ground, that the interrogative to winch the depositions responded, were taken from the Clerk's office, and re-executed without order of Court for that purpose, and that the answers proposed to be read were different from the first answers to the interrogatories, which were suppressed because of a defect in the manner of taking them. The Court overruled the objection and admitted the depositions, on the ground that as the case was on the appeal, and in the last resort, the objection should have been taken before the case was submitted to the jury. To this ruling the plaintiff's counsel excepted.
When the receipt from Rawlins, to Terry, for the purchase price of the negro was tendered in evidence, counsel for plaintiff objected to the same, on the ground that it contained no covenant or warranty. The objection was overruled by the Court, and plaintiff excepted.
Pending the trial, defendant introduced Stephen McGinness as a witness, who testified, amongst other things, that the plaintiff, McCurdy, told him that he purchased the notes from Rawlins with the understanding that if they were not collected out of Terry, that he, Rawlins, would make them good to McCurdy. The witness also testified, on cross-examination, that he was examined as a witness on a former trial of this case, and did not then testify to this conversation with the plaintiff, and gave as a reason, that he was not interrogated on that subject. Counsel for plaintiff moved, at this point, to suspend the trial and continue the case, on the ground that they were surprised by the testimony of McGinness to a material and controlling point in the case, which he did not disclose on his former examination as a witness, and that they desired time to obtain the testimony of wit-nesses to impeach him, which the...
To continue reading
Request your trial
-
Canal Ins. Co. v. Tate, 40918
...if not properly connected with the defendant by a showing that the judgment was in fact obtained against its insured. See McCurdy v. Terry, 33 Ga. 49(1), and Webb v. Biggers, 71 Ga.App. 90, 91(2a), 30 S.E.2d 59. While the evidence objected to on the ground stated in (a) above, should, perha......
-
Loe v. Brown
...that she did not remember what the condition of the deed was at the time Brown signed it. A similar point was decided in McCurdy v. Terry, 33 Ga. 49 (4), in which it was held: "The refusal of the court to suspend the trial and continue a case, to enable a party who Is surprised by the testi......
-
Loe v. Brown
... ... remember what the condition of the deed was at the time Brown ... signed it. A similar point was decided in McCurdy v ... Terry, 33 Ga. 49 (4), in which it was held: ... "The refusal of the court to suspend the trial and ... continue a case, to enable a party ... ...
-
Balark v. State, s. 33006-33009
...were fishing 'primarily'. Nor is it a good defense that others have violated the same law and been permitted to go unmolested. In McCurdy v. Terry, 33 Ga. 49(8), it is held that 'The refusal to charge what is not law is no ground for a new trial.' The assignments of error contained in speci......