Oglesby v. Stodghill

• Decision Date: 30 November 1857
• Citation: 23 Ga. 590
• Parties: Adkins Oglesby, plaintiff in error. vs. Joel Stodghill, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 590

Adkins Oglesby, plaintiff in error. vs. Joel Stodghill, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1857.

Trespass, in Elbert Superior Court. Tried on the appeal, before Judge Thomas, at September Term, 1857.

This was an action of trespass by Joel Stodghill against Adkins Oglesby, for entering plaintiff's premises and carryingoff and converting to his, defendant\'s use, certain wheat, corn, fodder, cotton, &c, belonging to plaintiff.

The defendant pleaded the general issue.

Plaintiff first offered in evidence the record of an action by him against defendant, brought to March Term, 1851, for breach of warranty of the soundness of a negro, which had been sold by Oglesby to plaintiff, and settled at March Term, 1853, by an agreement entered on the minutes of the Court, and which agreement is in the following words, to wit:

"Joel Stodghill,

VS.

Adkins Oglesby.

Case, &c, for breach of warranty of soundness of negro.

It is agreed between the parties to the above stated case, that the same shall be settled upon the following terms to wit:

The plaintiff shall deliver back to defendant the negro girl Adeline, and pay also to defendant the sum of four hundred dollars, and upon his doing this, the defendant shall make to plaintiff a deed for a tract of land which defendant got of plaintiff for said negro girl, and four hundred dollars, and defendant shall pay all costs.

Witness our hands and seals, this 14th day of March, 1853.

JOEL STODGHILL, [seal.]

ADKINS OGLESBY, [seal.]

Plaintiff then examined the defendant, Adkins Oglesby, who testified that the land was in possession of one Smith during the year 1853, as his tenant. That he had rented it to Smith the latter part of the year previous, and that witness was to receive one-half the wheat, one-fourth the corn, fodder and cotton. He received between thirty and forty bushels as his share of the wheat, did not know how much was made. Supposes seventy or eighty barrels of corn were made on the place; seven or eight small stacks of fodder.

The cotton crop was small, only two or three acres, and that indifferent. He received no corn, fodder or cotton. Heard plaintiff say that he received the rent corn. Smith had been witness\' tenant on the land ever since witness bought it, several years before.

Howell Smith, testified that he threshed the wheat and ginned the cotton made by Smith in 1853. There were 99 bushels of wheat and about one bale of cotton.

Benj. G. Fortson, testified, that he was present at a conversation between plaintiff and defendant, at March Term, 1853, after the settlement of their case. Stodghill proposed to return the negro to Oglesby the next day, and to go home that night for that purpose, for fear that as she was sick, she might die on his hands. Oglesby said he need not do it, the negro might remain till he (Oglesby) called for her, and if she died it was his loss. Stodghill said he had part of the money and would borrow the rest, and pay Oglesby, who said he need not do so, and Stodghill said he would as soon pay Oglesby interest as any one else.

Plaintiff closed, and defendant moved for a nonsuit, on the ground that the testimony did not sustain an action for trespass. His Honor, the presiding Judge, sustained the motion, but before the judgment could be entered on the minutes, plaintiff moved to amend, by adding a count upon the back of the agreement copied above.

The Court allowed the amendment, and defendant excepted.

Defendant then offered in evidence a deed to the land, from plaintiff to defendant, dated October, 1850. Also a deed to the same land from himself to plaintiff, dated in February, 1854, and closed.

Defendant requested the Court to charge the jury, that plaintiff could not recover on the new count in his declaration, without showing that he had demanded a deed to the land, or possession of the same, from defendant.

The Court refused so to charge, but charged the jury, that if they believed, from the evidence, that plaintiff offered to deliver the negro and pay the four hundred dollars in March, 1853, and the defendant waived his doing so, plaintiff was entitled to recover.

To which charge and refusal to charge, defendant excepted.

The jury found for the plaintiff seventy-six dollars and fifty cents, ($76.50.)

The defendant moved for a new trial on all the rulings, charges, and refusals to charge excepted to. The Court overruled the motion for a new trial, and defendant excepts and assigns the same as error.

Hester & Akerman, for plaintiff in error.

Cobb and Thomas, for defendant in error.

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

The first assignment of error is on the decision of the Court allowing plaintiff's counsel to amend his declaration. A new count was added and it was objected, that it contained a new and distinct cause of action and it was not germain to the matter of the original declaration and incongruous therewith. No objection was made to the new count as to its sufficiency. The first and original count is trespass for entering plaintiff's land and taking and carrying away plaintiff's wheat, cotton, corn and fodder. The count introduced by way of amendment, is a kind of nondescript, for taking and carrying away the proceeds and profits of the same land for the same time. The parties are the same. It was insisted, in the argument of the cause, that the amendment was a count in covenant for a breach of the agreement given in evidence, and that it could not be joined with the count in trespass. The defendant in the agreement referred to, contracted to do but one thing, and that was, to make the plaintiff a deed to the land, upon the plaintiff\'s "delivering back" to him the negro and paying him four hundred dollars. The plaintiff averred the performance of the condition precedent which entitled him to a conveyance of the land, but he averred no breach of the agreement. The averment is that he failed and refused to deliver the tract of land. The land was under rent for the year, and the averment of the non-delivery of the land. is perfectly consistent with the literal performance of the agreement to make a deed for the land, especially as no livery of seisin is necessary here to perfect the conveyance. Both counts, the old and the new, are for taking and carrying away the products of the same land, for the...