Howard v. Duncan

51 Ga. 550

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

Without going over the facts of this case, we are of the opinion that the judge erred in his charge to the jury, in saying to them that if Ploward recanted the land trade with Allen without the consent of the plaintiff they ought to find for the plaintiff. We recognize the right of the- plaintiff to sue without showing that Howard had collected the money from Allen. By taking back the land he made it impossible for the plaintiff to show that such money was collected. But on considering all the evidence, we think the right of the plaintiff to recover depends upon whether in fact Howard has got back his money with interest. Barrett, under no view of the case, was entitled to any profit, if none was made. The plaintiff took the note with a full knowledge of all the facts, and he ought to have no more rights than Barrett would have had, had he not consented to the rescission. Clearly, as it seems to us, that would be nothing if at last Howard, without fault of his own, has only got his money back. The proof was that Allen was insolvent, and that the land was worth no more than Howard’s original advance. What the six bales of cotton were worth does not appear, but if the whole would not more than repay Howard for his advance and interest, we think that even as against Duncan he can hold that. Duncan had full notice and must stand in Barrett’s shoes. If the land and cotton will more than repay Howard principal and interest, then Duncan’ is entitled to the excess up to the amount of this note and interest. That is the true equity between the parties under the facts as proven; and that, we think, ought to have been the charge of the judge.

Judgment reversed.