Smith v. Patterson

• Decision Date: 28 October 1950
• Docket Number: No. 1,No. 33262,33262,1
• Citation: 82 Ga.App. 595,61 S.E.2d 679
• Parties: SMITH v. PATTERSON
• Court: Georgia Court of Appeals

Page 679

61 S.E.2d 679

82 Ga.App. 595

SMITH v. PATTERSON.

No. 33262.

Court of Appeals of Georgia, Division No. 1.

Oct. 28, 1950.

Syllabus by the Court

Where the testimony of the defendant, substantiated by another, clearly shows that the defendant was entitled to prevail in an action, and where the only other view of the transaction involved is presented by the plaintiff, and shows an illegal or immoral transaction of the sort to which the court will not lend its aid in support of an action by either party, a verdict was demanded for the defendant, and a verdict having been returned for the plaintiff and judgment rendered accordingly, the trial judge erred in overruling the defendant's motion for a new trial.

Robert R. Forrester, Tifton, for plaintiff in error.

Ford & Houston, Sylvester, R. D. Smith, Tifton, for defendant in error.

SUTTON, Chief Judge.

This action was brought by A. V. Patterson against W. C. Smith, in Worth Superior Court, to recover $250, it being alleged that the plaintiff gave the defendant a check on the Sylvester Banking Company payable to the order of the defendant for $250 with the understanding that the same would be used by the defendant in reaching an agreement with H. A. Hornbuckle in regard to a controversy, and would not be presented to the bank for payment, but would be returned to the plaintiff, and that the defendant violated this agreement, and illegally, wrongfully, and fraudulently presented the check to the bank for payment and received $250 therefor, injuring and damaging the plaintiff in such sum. The defendant denied liability and alleged that the check was given to him in accordance with an agreement whereby the plaintiff and Hornbuckle each agreed to pay him $250 for his service in connection with the sale to the plaintiff of a farm owned by Hornbuckle.

The plaintiff testified, in part, as follows: 'I just loaned the Little Colonel [the defendant] the check so he could get Mr. Harry Hornbuckle to pay him and he was not to cash the check but was to give it back to me a few days * * * The Little Colonel said to me, 'Looks like I am about to get in a snap with Harry Hornbuckle--he don't want to pay me nothing for my work--and I want you to help me out.' Well I asked him what could I do, and he said for me to give him a check to show to Harry Hornbuckle and make him think I had paid him $250 so he could get him to pay him and so I did * * * I don't owe him that $250.00 check--he owes me that $250 for I just loaned him my check and he was not to use it--that's right--that's the way it was.'

The defendant testified, in part, as follows: 'I know Mr. A. V. Patterson well. Yes sir, he gave me that $250.00 check dated December 17th, 1946--he gave me that check on condition. I represented Mr. Patterson in the purchase of land from Mr. Harry Hornbuckle and that check there represents my charges. Yes, I had some of Mr. Hornbuckle's land listed with me for sale before it was sold at auction by the Johnson Land Company and I had talked with Mr. Patterson several times about purchasing the farm that joined his. * * * Finally, when the Johnson Land Company was going to auction the Hornbuckle land, Bo [the plaintiff] called me and asked me to go down there with him. * * * When we got down there before the sale we talked to Mr. Hornbuckle--that is, Bo and I, and Bo made the statement to Mr. Hornbuckle there on the grounds before the sale, 'Harry, I have brought Smith down here to do my figuring and bidding for me.' * * * Bo agreed to pay $20,000.00 for this land. Harry said 'Now, Bo, will you stick to that and bid it at the sale at that price?' And he is the only one who made a bid on the property and he bought it in for $20,000. * * * Coming on back home Bo asked me if I had checked the title to that land and I told him I had not, and he then said 'Well I want you to check it.' I told him I would check it as soon as we got to town and I could get in the Clerk's office, which I did. * * * So Bo, his wife, and I went in his car that same afternoon down near what is known as the Phil Causey store to Harry Hornbuckle's other farm in Worth County, which was to be sold that afternoon. * * * We came back in Bo's car and on the way back, Bo said 'I want you to go ahead and draw up all the necessary papers, including the deed, and let me know when you will be ready to go to Tifton to complete the deal with Harry.' I then drew...