Herty v. Clark

46 Ga. 649

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

1. Mistake in settlement of accounts is too common a ground for the interposition of a Court of equity, and pro hao vice, on a proper case made, our Courts of law are Courts of equity — to need .elaboration — 1 Story’s Equity Jurisprudence, section 452, and the sections immediately preceding. The fact that Clark gave his note, not in settlement or by way of compromise of the disputed amount, (for he insisted at the time that the mistake existed,) but subject to future adjustment, does not estop him.

2. This settled, the only remaining point to consider is, did thé jury have sufficient evidence before them of the mistake to justify their verdict. As to amounts the record is confused — the plea admits $30 due the plaintiff, and is, of course, sworn to — and the jury find for this amount. Clark, in his testimony, says “fifty dollars” is still due, but this is written in figures in the record and may be intended for thirty. The note of $800, according to Clark’s testimony, was for $240 principal, and $20 interest, too much. Allowing, first, this credit and then the credits indorsed on it, and the verdict of the jury is right, omitting some slight interest which they probably thought counterbalanced by the interest Clark had been paying on the $260 before the discovery of the mistake. True, ITerty contradicts all this testimony about a mistake. Still Clark’s evidence supports the verdict and the judgment must, therefore, be affirmed.

Judgment affirmed.