Harper v. Parker

28 Ga. 257

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

There are but two questions in this case: 1st, did the court err in rejecting the notes offered by the.defendant ? 2dly, was the charge of the court correct, and authorized by the evidence ?

1. We thiuk the court was wrong in refusing to allow the notes to go in evidence. The complainant in his bill alleges that he was to pay the defendant $275 for his half of the lot of land, upon which the mill was erected; and that he had paid $125. The defendant in his answer states that he was to pay $257 ; and that he had paid $75, Taking either statement, and the balance due for the land was something like the amount of the three notes held on Parker by Harper. There was enough in the proof to warrant the jury in finding that these notes grew out of the transaction, for the settlement of which the bill was filed, and we shall order a new trial in this case, unless Parker will write the amount of these notes off of the judgment.

2. We do not understand the plaintiff in error as obecting to the charge in the abstract. He contends there was no evidence to justify it. The main point in controversy between these parties, is whether, when Harper’s bond was transferred to him by Clarke it. was on absolute purchase of Parker’s interest, or only a conditional sale, provided Harper had the debts of Turner to pay, amounting to eight hundred dollars; and upon which he was security for Parker.’. ITe did not have this debt to pay, but only paid the Roberts debt for Parker, amounting to a little more than <¡>400.

We think there is evidence to sustain either hypothesis; and we must say, the testimony.was abundant to show that the sale was conditional, if a sale at all; and the court was warranted in charging as it did. And it is easy to demonstrate, that the finding of the jury approximated to something like accuracy, provided they adopted the theory, that the sale was not absolute.

It would he useless, therefore, to re-try this case, provided the credit of the notes is allowed. If the pleadings are faulty they could be amended. Why should these notes, if they are bona fide due, not be suffered to. come in whether growing out of this transaction or not? This bill is for an account, and Parker owes Harper these notes. Why should they be excluded.