Roberts v. Davis

• Decision Date: 28 February 1884
• Citation: 72 Ga. 819
• Parties: Roberts, for use. vs. Davis.
• Court: Georgia Supreme Court

72 Ga. 819

Roberts, for use. vs. Davis.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

Estoppel. Fraud. Vendor and Purchaser. Contracts. Consideration. Before Judge Simmons. Houston Superior Court. October Term, 1884.

Roberts brought trover against Davis to recover a mule. The case was carried to the superior court by appeal. It was so amended as to be in the name of Roberts for the use of Bryan. The defendant filed the following pleas:

(1.) The general issue.

(2.) That Roberts had sold the mule to one Washington, taking a note from him for $115.00, and retaining title until paid for., and Bryan was security on the note, that Washington paid $40.00 on the amount, and then traded the mule to one Tharpe, who traded it to one Taylor, and he, in turn, traded it to defendant; that neither Tharpe, Taylor nor defendant had notice of the claim of Rob-erts; that after defendant traded for the male, Taylor, hearing of the claim of Roberts, went to see Bryan about it, and caused Washington to turn over certain property to Bryan for the purpose of saving him harmless on account of his suretyship; that Bryan accepted the property for that purpose, paid the balance due to Roberts, and informed Taylor that the note had been paid, the suit settled, the claim of Roberts released, and the title freed from all claim on the part of Roberts, Bryan or Washington; that Taylor communicated this fact to defendant, and he therefore filed no plea, believing the case to have been dismissed; that Bryan nevertheless appeared in court, and testified that the title was still in Roberts, but in fact the claim was fully paid off and discharged before the trial.

It is unnecessary to set out the evidence in detail, the material portions of it being stated in the decision.

It is only necessary to state that Taylor testified that Washington had sold the mule to Tharpe, and Tharpe had sold to witness, and the latter was negotiating the sale to defendant at the time of the conversation, etc., with plaintiff set out in the plea.

The jury found for the defendant.

Plaintiff moved for a new trial, on the following among other grounds:

(1.) Because the court charged as follows: "If you should believe from the evidence that, before J. W. Taylor traded the mule in dispute to Davis, the defendant, Taylor went to J. S. Bryan, the usee, to see about what kind of a lien there was on the mule, and Bryan told Taylor he would be safe in trading, then you should find for the defendant."

(2.) Because the court charged as follows: " If, before Taylor traded the mule in dispute to defendant, Bryan told Taylor he was safe in trading, though Bryan then had no title or lien on the mule, and subsequently acquired the title by paying the Roberts note, you should find for the defendant, on the same principle that the law will notlet a man stand by silent and see another purchase his property and not disclose the title."

(3.) Because the court erred in the whole charge to the jury.

(4.) Because the verdict was contrary to law and evidence.

The motion was overruled, and plaintiff excepted.

B. M. Davis, for plaintiff in error.

Duncan & Miller; R. N. Holtzclaw, for defendant.

Jackson, Chief Justice.

The facts of this case, either undisputed or as related by the witnesses of the defendant, are substantially these: An action of trover was brought by Roberts, who retained title to the mule sued for in this action until he was paid the purchase money therefor; Bryan was responsible for the purchase money, with a negro, Washington, who got the mule; Roberts had retained title to protect Bryan, and at his instance, and instituted suit for the mule in order to get his money. Bryan paid the balance of the note, and Roberts disclaimed title, being no longer interested, having got his money, and by order of court, this action of trover proceeded in the name of Roberts for the use of Bryan. The consideration which passed to Roberts for the mule was a note signed by Washington and Bryan for $115.00, and title was retained until the note should be paid, which is in evidence; pending the action of trover, brought, it seems, to get a balance of seventy-five dollars due on this note, Roberts having left it for collection in his attorney's hands, Bryan paid the $75.00 and took this receipt:

"Received of J. S. Bryan the sum of seventy-five dollars as payment for a mule sold by me to John Washington, I, Roberts, retaining title to said mule for purchase money, said Roberts binding himself to transfer the title to said mule to said Bryan, when he shallrecover said mule, in his action of trover now pending in the county court of Houston county. December 19th, 1879.

(Signed) W. L. Roberts,

Per Davis & Riley,

Attorneys at law for Roberts."

Before this action was brought, Washington sold the mule to Tharpe, and Tharpe to Taylor; and Taylor being about to sell to Davis, the defendant, hearing that there was some cloud on the title, in possession of Bryan, before he consummated that sale, called on Bryan, whom he told of his purpose to trade the mule to defendant, and inquired about the title, when Bryan told him he could safely trade, as Washington had enough to pay for the mule, and asked Taylor if he could not fix up a bill of sale, so that he could control what Washington had. Taylor told him that, if he would send Washington over to him, he would arrange it. Next day Washington came, and Taylor drew up the papers, and asked Bryan next day if he had got the papers; he said yes, and that he was...