Mcnabb v. Thomas

• Decision Date: 31 July 1855
• Docket Number: No. 67.,67.
• Citation: 18 Ga. 495
• Parties: Noah McNabb, plaintiff in error. vs. Lockhart & Thomas, defendants in error.
• Court: Georgia Supreme Court

18 Ga. 495

Noah McNabb, plaintiff in error. vs. Lockhart & Thomas, defendants in error.

No. 67.

Supreme Court of the State of Georgia

JULY TERM, 1855.

Assumpsit, &c. in Dougherty Superior Court. Tried before Judge Perkins, May Term, 1855.

This was an action brought by Lockhart & Thomas against Noah McNabb, for a sum of money entrusted to his care, and which he never delivered, but alleged had been lost. The following evidence was submitted and exceptions taken. Error has been assigned on all of these exceptions:

The depositions of Nelson P. Foster: In the latter part of December, in the year 1850, or in the early part of the following January, 1851, I received from Mr. John Jackson, then a merchant in Albany, in said county of Baker, Thirty-four hundred and eighty dollars, in bank bills, three thousand of it done up in five hundred dollar parcels and the remainder loose; this was done in said Albany; said John Jackson told me at the time, the money belonged to Lockhart & Thomas, the plaintiffs in this case, and requested me to deliver it to them in Apalachicola, Florida, which I promised to do, as I was going there on a Steamboat of which I was Captain; but the water in the river (Flint) fell so much that I was detained on the way two or three weeks; and seeing that I would not reach Apalachicola in some time, I delivered all the money to James G. Johnson, then a merchant in Newton, in said Baker County, in obedience to the annexed order, signed by Lockhart & Thomas, and took said Johnson\'s receipt, which is also hereto annexed. This receipt shows the date of the transaction, and I would state that to be about the time, from my recollection alone.

I know that the said money belonged to said Lockhart & Thomas, only by being told so by said Jackson, from whom I received it. I know the amount of it, because I would not give my receipt for it until had counted it; and said Jackson broke the package to enable me to count it, which I did in his presence. The seals of the package were, however, as well as I recollect, broken before I saw it, and was tied up with a string.

If the plaintiff's Attorneys, or either of them, ever mentioned this case, or anything in relation to it, to me or in my hearing, I do not remember it. Before my arrival at Apalachicola, a few days after I delivered the money to said Johnson, as stated in my answer to the direct interrogatories, I informed Mr. Thomas of a rumor which I heard on my way down, that the money had never reached Bainbridge, and that the defendant, then a stage driver, said that he had lost it. I remember no further conversation as ever having occurred between said Thomas and myself, on the subject, at any time. Since, Dr. Lockhart told me that he wished me to answer, some interrogatories which had been taken out for me to answer, in relation to the delivery and the amount of the money in question. I promised to do so, and he showed me to the place where I am now, before the Commissioners; hethen left immediately. This is all the conversation I ever had with him on the subject. There has not been, and is not now, any person present at my examination, except the Commissioners, Josephus Echols and John J. McKindree. I did not know who the plaintiff\'s Attorneys were until this examination commenced, and I saw their names to the interrogatories; I never received a letter, nor even a message of any kind, from any person in reference to said money; I know nothing, whatever, about the taking out of the interrogatories, nor know how they came to be taken; I suppose, however, that they were taken out for the purpose of making me a witness for the plaintiff.

To the reading all of that portion of said answers, as giving the sayings of John Jackson, defendant, by his Counsel, objected; which objection the Court over-ruled, and defendant excepted.

To which answers was the following receipt and order, copies of which arc as follows:

Steamer AlBany, February 3, 1851.

Received from Nelson P. Foster, Captain of the Steamer Albany, Thirty-four Hundred and Fighty Dollars, for Lock-hart & Thomas, of Apalachicola, Fla.

JAMES G. JOHNSON.

ApaLACHICOLA, February 3, 1851.

Captain Foster, of the Steamer Albany, will please pay Mr. J. G. Johnson Thirty-four Hundred and Eighty Dollars, received from Mr. John Jackson, of Albany, Ga., to be delivered to us, and his receipt for the same shall be binding on us. LOCKHART & THOMAS.

JAMES G. Johnson: The receipt annexed to the answers of Foster was the one given by him to Foster, and that he received the money mentioned in the receipt, and that he delivered to the defendant all the money he received; counted four or five packages, and each of them counted, containedfive hundred dollars; and for that reason he supposes that all the packages contained the same amount, except one which counted $480; there were six or seven packages; those he counted held out. He delivered the packages to be delivered to John M. Potter, of Bainbridge, and defendant undertook to deliver it, and was informed of the amount and consented to take it; and said he would not carry any more money, but upon some other conversation, finally agreed to take the money; at first, he told Johnson he did not intend to carry any more money; Johnson told him ho was sorry for it, and after some conversation, consented to carry it.

Defendant proposed to ask Johnson, in his cross-examination, if John Montgomery had not told him, the same morning that the money was delivered, that he had a message to him from McNabb, and that was, that he had lost the money; that he wished him (Johnson) to go and look in the stables and down to the river for the money; which question the plaintiff objected to, and which objection the Court sustained; to which ruling, the Counsel for the defendent excepted.

The depositions of John M. potter: Defendant had delivered no money to me since the 7th day of February, 1851; I do not know that the defendant promised to receive from James G. Johnson of Newton, and deliver to me at Bain-bridge, as the agent of plaintiff; and as before stated, he has delivered no money to me since the 7th day of February, 1851. The defendant was stage driver in the employ of F. K. Wright. There was no promise made to deliver any money to me as agent for plaintiff; nor was I to pay defendant any thing for bringing the money to me.

Defendant has frequently brought packages of money safely to me, and conveyed packages from me to Newton, while employed in driving the stage between Bainbridge and Newton; have never lost any thing through him nor known of any others losing, except the plaintiff. I know nothing more that would benefit the defendant.

In all cases, when I have handed defendant packages of money to be conveyed to Newton, he has placed them care-fully in his pocket, generally in the breast of his coat. In other respects, I have thought him careless; my opinion of him was formed from all transactions I had with him. The plaintiff closed his case.

Defendant then moved a non-suit, which motion the Court over-ruled, and defendant excepted—1st. Because the plaintiff had no right to recover in this form of action, but if he had any remedy, it was by action of trover. 2d. Because it was shown, by the evidence, that the money was lost, and the plaintiff had shown no negligence on the part of defendant. 3d. Because the plaintiff had not alleged in his declaration, nor proven by the evidence, gross neglect in the defendant; or, in fact, any negligence whatever, which is necessary. 4th. Because the evidence showed that it was delivered to a mail carrier, which was contrary to public policy, and a fraud upon the law.

EVIDENCE FOR DEFENDANT.

Depositions of John Montgomery: He was at the ferry when the defendant came up; it was about the last of February, he thinks, and about nine o'clock in the morning. Defendant came on horse-back, in a gallop, and in a hurry; and from the appearance of his horse, he had rode very fast. Defendant told witness he had lost some money that Mr. Johnson had sent by him to carry to Bainbridge, and that he had come back to hunt it. He told witness, if he found that money he would never be caught carrying money for any body else, as long as he lived. He requested witness to go and tell Mr. Johnson that the money was lost, and for him (Johnson) to go and hunt about the stables where ho (defendant) had been. He then told witness that he would return and search down the road, and that he was sorry that he had no one to attend to the stage, that he might look better and longer for it. Witness says that there was something unusual about his manners; he rode by witness without speaking to him—a thing which he never did before—and kept lookingfrom one side to the other of the road, and appeared to be very uneasy about something. Witness was sitting about 60 feet from the river, on the other or cast side, when defendant rode by him; and when defendant came to the bank of the river, he appeared frustrated and looked up and down the river, and then turned and looked to witness, when witness asked him what was the matter; he then told witness what has been stated above about the money; he remained with the witness five or ten minutes. Witness has answered what message was sent by him, and says that he delivered the message to Mr. Johnson. Defendant said he must return to the stage, for he had no one to attend to it for him, and he left witness to go back to the stage, as he said; witness has stated, already, the circumstances, as nearly as he recollects, of defendant coming to the river.

James G. Johnson: Swore, that Montgomery, the same morning that the money was said to be lost, came and told him what McNabb had said to him about the loss of the money, and that he wished him to go and look in the stables for it; and he received the message from Montgomery between breakfast and dinner hours of the same morning that the money was delivered; does not recollect the exact time of the...