Shipley v. Eiswald

• Decision Date: 31 July 1875
• Citation: 54 Ga. 520
• Parties: R. J. Shipley, plaintiff in error. v. T. G. Eiswald, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 520

R. J. Shipley, plaintiff in error. v. T. G. Eiswald, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

New trial. Newly discovered evidence. Before Judge Hall. Rockdale Superior Court. October Term, 1874.

Eiswald brought trover against Shipley for two sorrel horses and a two-horse wagon and double harness, alleged to be of the value of $360 00, and worth $3 00 per day for hire. The defendant pleaded the general issue. The evidence for the plaintiff was, in substance, as follows: 1st. Contract signed by W. B. Roberts, of date January 14th, 1873, by which he agreed to purchase from plaintiff two sorrel, one gray, and one bay, colored horses, two wagons andtwo sets of harness, for $720 00, to be paid for in a certain *manner, and subject to certain conditions, all unnecessary here.

Upon this contract was the following indorsement:

"The within named two sorrel horses, one set of double harness and one wagon, this day surrendered to said Eiswald, and new contract made touching the same.

(Signed) "T. G. Eiswald,

[No date.] "W. B. Roberts."

2d. Contract between the same parties, of date, May 10th, 1873, signed by both parties, by which plaintiff hired to Roberts two sorrel horses, one double set of harness and one two-horse wagon, the latter to have the privilege to purchase said property until September 15th, next thereafter, by depositing with plaintiff $100 00, monthly, commencing with June 1st next, for three months, and $60 00 on said September 15th. This instrument further provided that if Roberts did not so manifest his intention to buy before each of the aforesaid respective dates, he forfeited his right to purchase and all former deposits, and was to pay $1 00 per day for hire, the title in the property remaining in the plaintiff until paid for. Then follows provisions as to Roberts' holding as bailee, taking care of and feeding stock, etc.

3d. The plaintiff testified, in brief, as follows: Property sued for was in possession of defendant. Demanded the same before suit. Worth $3 00 per day for hire. Went to see W. B. Roberts in fall of 1873. Got McCurdy's mule and buggy. Did not then see him. The next time he went, he walked out to see him. His business was to get a brown mare and buggy which he had hired to Roberts with the privilege of buying, or the pay for them. Made arrangements for him to furnish the plaintiff wood in pay for same. Did not tell McCurdy that he had received all the pay for the sorrel horses but $80 00 or $90 00. Told him that there was a balance due on a horse trade. D. R. Roberts is a brother of W. B. Roberts. Had a conversation with him in the summer of 1873. Told him that his brother owed witness $80 00or $90 00. Was speaking of balance due on bay and gray horses. *The first contract was settled on...... day of May, as appears from the entry thereon. Then the second contract was entered into in reference to the property in controversy. Roberts has never paid $1 00 for them.

evidence for the defendant.

1st. John W. McCurdy testified, in brief, as follows: Plaintiff came to Stone Mountain in the fall of 1873 for the purpose of going out to the place of W. B. Roberts. Witness furnished him a horse, buggy and a negro boy, to take him out. He askedwitness if Roberts had any wood on the road as he wanted to get some. Replied that he, witness, had wood which he would sell him. Said he wished to buy from Roberts as the latter was owing him a balance on a horse trade. The hire of horses and wagon, after payment of expenses, was not worth more than $1 00 per day.

2d. D. R. Roberts testified, in brief, as follows: W. B. Roberts, his half brother, bought, or made some kind of a trade to get one gray horse, one bay horse, and one or two wagons, from plaintiff. Thinks the sorrel horses were paid for all except $80 00 or $90 00. This opinion is based on the fact that he was hauling brick and wood for the plaintiff to pay for the horses, and heard his brother and plaintiff, in settling, say that there was that amount still due on the horses. He hauled, after that conversation, for the plaintiff. He understood that it was to finish paying for the sorrel horses.

3d. R. J. Shipley testified, in substance, that he purchased the horses, wagons and harness from W. B. Roberts, on the Wednes-day after the first Tuesday in October, 1873, for $270 00. That he paid for the same in good faith, and never knew of any adverse claim until the day this suit was commenced, when they were demanded from him; that he paid their full value; that $1 00 per day would be full value of hire of property after deducting expenses of same.

The jury found for the plaintiff $620 00. The defendant moved for a new trial because the verdict was contrary to the evidence, and because of the newly discovered evidence of *W. P. Weaver and J. N. Wilson. Other grounds are set forth in the record, but were not insisted on.

In support of the newly discovered evidence were attached the affidavits of George W. Gleaton and of ...