Dunagan v. Dunagan

38 Ga. 554

• Court: Supreme Court of Georgia
• Decided: December 15, 1868
• Status: Published

Opinion

McCay, J.

1. A receipt for money is, as a general rule, an exception to the principle that parol evidence is inadmissible to explain or contradict a writing, (Code, section 3754; 1 Kelly, 18; 3 Kelly, 215.) Unless it also be a contract, Sullivan vs. Cox, 7 Ga., 144. This is a receipt for money, and under the rule, we do not think the defendant was concluded, by the fact that he accepted it, from showing in the first place, the independent fact that the signer of the receipt was the owner of part of another share, and secondly, that the five hundred dollars was in full of that share also. Why does not this come within the exception as to receipts ?

As to the point that the Court permitted the defendant to show that one of the plaintiffs had an advancement, during the life of the testator, and which was not taken into account in the equity case, and that, after the judgment, he had agreed it should be accounted for by him, we see no error. In the first place, this equity decree is only prima facie binding on the securities, they may go behind and show that it was not a correct adjustment. Bryant vs. Beall, 1 Kelly, 357 ; Bradwell vs. Spencer, 16 Ga., 581. It was competent, too, even for the defendant to show a subsequent agreement, to lessen the judgment, in consideration of the error in not taking the advance into the account. Rodgers vs. Atkinson, 1 Kelly, 18.

2. There are one or two other errors assigned, growing out of the admission of parol evidence by the Court, which we confess ourselves unable, from the record-, to understand. The Code requires, that the bill of exceptions shall plainly and distinctly specify the decision complained of, and if, from carelessness or haste, parties fail to make such a case as that, this Court can clearly understand what has been done, and how the party complaining has been injured; it would be but groping in the dark, perhaps unjustly, to the Judge below and the parties, to undertake to adjudicate the matter.

3. We see no error in the charge of the Court, taken in connection with his certificate, of the ground taken by the defendant’s counsel in his argument before thejury.

The Judge charged that the jury could not go behind the decree. This was a stronger charge for the plaintiffs than they were entitled to against the securities, if there was any evidence to justify them in so doing, 1 Kelly, 357. The charge of the Judge in reference to the entries on the fi. fa., and in reference to the effect of indulgence, was in reply to the argument of the defendant’s counsel before the jury, and was proper, under the circumstances. It was competent for the defendant to be permitted to state, in broad terms, that the decree was fully paid. He was open to cross-examination by the plaintiff, and to contradiction, and it was a question for the jury to determine, whether the whole evidence did or did not show his statements to be correct. Here was a very old claim; the evidence clearly showed many and complicated transactions between the parties. The truth of the case turns very much upon the truthfulness of the defendant. Of that, the jury was the judge, and we do not think the verdict ought to be disturbed. The jury and the Court below, have given it for the defendant and we will not interfere.

Judgment affirmed.