Howard v. Behn & Foster

27 Ga. 174

Opinion

By the Court.

Lumpkin J.

delivering the opinion.

This is really an action for an account, in which is an item of #2,607 37, paid by the plaintiff for the defendant, on a draft. It is for the plaintiff to prove that he paid this money for the defendant, and that under the circumstances, he is entitled to recover it back. The amendment was unnecessary. The complaint was good without it. The amendment did not vitiate it. The complaint is not on the draft, It could not be, of course, at the instance of the acceptors against the drawers. It must be a monied action, and no other sort.

If, then, the writ was good, the Court was right for admitting the proof under it. The objections to the testimony were founded on a misconception of the nature of the suit. Nor do we see any thing wrong as to the proof of the custom of merchants, in relation to certain matters.'

Interest was due on the cash balance, overpaid by the plaintiffs. The account, except as to the amount paid on the draft, was not disputed by the defendant, when presented. Whatever the cotton lacked of refunding the cash paid on the draft, should bear interest.

The real trouble in this case is, the bona jides of the sale of defendant’s cotton; and that the Court submitted to the jury.

Judgment affirmed.