Price v. Palmes

• Decision Date: 30 June 1860
• Citation: 30 Ga. 802
• Court: Georgia Supreme Court
• Parties: PRICE. vs. WEBSTER & PALMES.

30 Ga. 802

PRICE. vs. WEBSTER & PALMES.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

Assumpsit, in Sumter Superior Court. Decided by Judge Allen, at October Term, 1859.

Webster & Palmes sued John V. Price on a guaranty. On the trial, plaintiffs read the guaranty in evidence, which is as follows:

"Oglethorpe, January 22d, 1853.

"Messrs. Webster & Palmes: Gents—The objects of this letter is to say to you that one Mr. Thomas M. Allen, a relative of mine, has taken an interest with Mr. F. M. Davis,, of this place. Mr. Allen is a minor, and I will answer half the debts of the concern, and I will render them such other assistance as they may need.

(Signed) John V. Price."

Plaintiffs then read a note, dated March 21st, 1854, and due at ninety days, for $737.50, signed "F. M. Davis, " and payable to plaintiffs or their order.

Plaintiffs also introduced the testimony of Amos E. Webster, which is as follows:

The note sued on was given in settlement of an account for goods furnished F. M. Davis, of Oglethorpe, at the time and in the quantities mentioned in the annexed statement.

Witness was clerk of plaintiffs during the period embraced in the account. All that witness knows of a partnership between Davis and Allen was gathered from Price's letter. Plaintiffs never heard of the dissolution of said partnership until this suit was brought. Plaintiffs were induced by Price's letter to furnish the goods to the concern doing business under the name of F. M. Davis.

The account annexed to the testimony of Webster, and which was also read in evidence, is made out in favor of plaintiffs against F. M. Davis, and shows items of goods furnished, and dealings between the parties, commencing in September, 1852, and continuing clown to June, 1854, and showing as the result of the dealings between the parties during that entire period, a balance of $737.52, for which the note sued on was given. The aggregate amount of the account is between $7,000.00 and $8,000.00—the payments made from time to time, after the partnership of Davis & Allen was formed, having reduced it to the balance above named. The account further shows that, at the time said partnership was formed, Davis was indebted to plaintiffs some $1,500.00 or $1,600.00, and this indebtedness goes to make up in part the aggregate amount reduced by payments as, above stated.

Plaintiffs closed their case, and defendant proposed to in-troduce the testimony of Thomas M. Allen, to prove that he was in partnership with Davis a short time only and then acted as his clerk, and further, that payment of the note was never demanded of him, and that, if it had been, he could have paid it out of the effects of Davis in his hands.

The Court, on motion, rejected' this evidence on the ground that Allen was interested in the event of the suit.

The jury returned a verdict in favor of plaintiffs for one-half the amount of the note, and defendant moved for a new trial on the following grounds:

1st. Because the Court erred in refusing a nonsuit when moved for by defendant's counsel on the ground of a want of notice to defendant in a reasonable time of the acceptance by plaintiffs of his guaranty.

2d. Because the...