Harper & Simmons v. Dillon

60 Ga. 498

• Court: Supreme Court of Georgia
• Decided: January 15, 1878
• Status: Published

Opinion

Jackson, Judge.

This was a suit in the statutory form upon a receipt, which is as follows : “ Received of J. G. Sasser, three hundred and ninety five dollars and thirty-five cents, for Dr. W. W. Wilkinson, said amount to be placed upon claims of said W. W. Wilkinson against said J. G. Sasser, which said Wilkinson holdsand the receipt was signed “ Harper & Simmons, agents for W. W. Wilkinson.”

The suit was brought by Dillon as administrator on Wilkinson’s estate.

The plaintiff introduced the receipt and closed, whereupon defendants moved for a non-suit and to dismiss the action. The court overruled both motions, and error is assigned on this ruling.

1. The statute is very broad which allows suits in the form prescribed to be brought on written contracts. Code, §3391. It embraces “note, bill, bond, receipt, or written promise of any description.” This is a receipt; therefore it is embraced ; and therefore the action should not have been dismissed.

Was the motion for a non-suit properly overruled ? The receipt showed that the defendants got money for the plaintiff’s intestate, and it was for them to show what they had done with it. The fact that they acknowledged they had it was enough to recover on, whether that acknowledgment was written or verbal. In this case it was written in the shape of a receipt, and without more, authorized a recovery in a suit by the principal against his agent, as they got the money for him. Therefore the non-suit was properly refused.

2. But it is said that the court erred in rejecting Harper as a witness. The principal, Wilkinson, was dead and Harper was incompetent as the suit was by the administrator, Dillon — certainly to show any transaction between Wilkinson and Harper of payment or otherwise. If offered to show anything transpiring since Wilkinson’s death with the administrator, or with others before or since his death, the attention of the court should have been called thereto ; but the court certifies that no specific questions were asked, and that no plea was in except the general issue and payment. So that the court’s attention was not called to any fact to which the witness could legally testify, it not being alleged that any payment was made since the death of Wilkinson in the pleas, and no question being asked as to such payment. Code, §3854, paragraph 1.

So that there being no error in overruling the motion to dismiss and to non-suit the plaintiff, and none in ruling that the witness, who was .a party to the record, and an administrator the other party, was incompetent, the judgment must be affirmed.

Judgment affirmed.