Small v. Williams
| Decision Date | 20 July 1891 |
| Citation | 13 S.E. 589,87 Ga. 681 |
| Parties | Small v. Williams. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Pertinent declarations, made by a person while on his way to procure the execution of a mortgage to secure an antecedent debt or liability, the expedition having resulted in its procurement, are admissible in evidence against the mortgagee on the question whether the mortgage was procured by fraud or duress. They are a part of the res gestoe of the transaction, and consequently are admissible in evidence irrespective of the relation of agency between the mortgagee and the person who procured for him the execution of the mortgage.
2. The sayings of an alleged agent dum fervet opus, while not evidence to prove his agency, may be looked to on the question whether he was acting as agent, there being other sufficient evidence to establish the agency.
3. If the matter of a lengthy extract from the charge of the court is sound in part, any unsound part should be specifically pointed out in the motion for a new trial.
4. If declarations which require some answer or contradiction are made in one's hearing, and he remains silent, his silence may be treated as signifying his assent to the truth or correctness of the statement.
5. A note and mortgage, given in whole or in part upon an agreement, express or implied, to settle or prevent a criminal prosecution are void, unless the case falls within some express statute authorizing settlement. The alternative of a legal proposition favorable to one party, if fairly given in charge, need not be in immediate connection with the alternative in favor of the other party.
6. No request being made to charge as to the burden of proof or the preponderance of evidence, mere failure to charge on these topics will not require a new trial.
7. The evidence warranted the verdict.
Error from superior court, Bibb county; A. L. Miller, Judge.
Bill by J. W. Williams against A. B. Small to set aside a mortgage and note. Judgment for plaintiff. Defendant brings error. Affirmed.
Williams filed his bill in equity to set aside and cancel a mortgage and note given by him to Small, on the ground that they had been procured from him by duress and fraud. It seems that Williams' son John, at the time of the transaction, was an agent or drummer for Small, and had lost some eight or nine hundred dollars of Small's money at Reynolds, Ga. He telegraphed his loss to Small, and Small employed Shackleford, a detective, to go to Reynolds, and find the money or the thief. Shackleford and young Williams returned to Macon in the afternoon of the same day, and young Williams said to Small that the money was lost through his negligence, and proposed to secure Small by giving him his note, with his father in-law as surety. Failing to get his father-in-law to sign the note as surety, he and Shackleford went to J. W. Williams, his father, and procured him to sign the note. When it was delivered to Small he declined to accept it, on the ground that he had no knowledge of J. W Williams' solvency. Young Williams then proposed to have his father secure the note by a mortgage on his farm, which Small said he would accept. The mortgage was prepared by Small's bookkeeper, in Small's presence, and handed to Shackleford, the detective, and he and John Williams, the son, and De Lane, one of Shackleford's assistants, procured a carriage, and started to the home of J. W. Williams, which was three miles in the country. On the way to the latter place Shackleford called at the house of Subers, a magistrate, and got him to accompany them for the purpose of officially attesting the mortgage. Subers entered the carriage with Shackleford and the others, and while going to the house of J. W. Williams, Shackleford, in explanation of his reason for requiring the presence of Subers, said to him that Small had had young Williams arrested for embezzlement; that he had done away with some of his money at Reynolds; that he had applied to his father-in-law to stand his bond, and that he declined to do it, etc.; saying this in an undertone, so that Williams could not hear it. After arriving at the house of the elder Williams, and after he had signed the mortgage, Shackleford made other declarations. Counsel for Small objected to proof of the conversation between Shackleford and Subers, and the other declarations made at the house, (1) because they were irrelevant, and (2) because the declarations of Shackleford were inadmissible for the purpose of proving his agency.
1, 2. Under the facts above recited we think the declarations of Shackleford were admissible for the purpose of...
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