McBurney v. Harris

54 Ga. 470

• Court: Supreme Court of Georgia
• Decided: January 15, 1875
• Status: Published

Opinion

McCay, Judge.

It appears that McBurney and Harris were partners in a hotel, McBurney owning the house and the furniture. Harris, after a while, bought the furniture, and leased the house for five years. The price paid for the furniture was not definitely fixed, thought notes were given based on a former appraisement.. Harris complaining, the parties had a settlement, and $2,000 00 was taken off the price, various credits put upon the debts, and new notes taken for the balance. On the trial, McBurney testified that this settlement included all demands of both parties up to the date of the new notes. Harris said that nothing was included but the deduction and certain cash payments he had made. After about three years, Harris gave up his lease, and McBurney made a new lease to Wheelan, and sold Wheelan the furniture as his. Harris consented to this, provided McBurney would settle with' him. The jury, by their finding, charged McBurney with the price Harris liad agreed to give for the furniture. During the argument the judge refused to permit McBurney’s counsel to discuss before the jury what would be the rights of the parties in case the jury should consider there had been no general settlement at the giving of the new notes, as well as what would be their rights if there was, the court holding that he must choose whether to abide by the settlement or not.

1. We think the jury was wrong in charging McBurney with the price of the furniture, as Harris had agreed to pay for it; that is, to treat the sale as rescinded. Harris had the use of it for three years; was he to have all that for nothing? Was the wear and tear of it nothing ? Evidently the real intent was for McBurney to buy back the furniture, to take it off Harris’ hands at its worth. He got from Whelan far less than Harris had given for it, and it was doubtless worth far less. In fairness and equity, Harris ought only to be allowed the worth of it at that time. As no price was agreed on, a quantum valebat was the true sum to charge MeBurney with.

2. We think, too, the court had no right to limit the counsel as he did. Both views of the case were before the jury, and it was for them to determine which they would take under the evidence, and it was the right of the counsel to discuss the result according to either view. The record in this case is very voluminous, and many questions are made which we think immaterial, but we grant a new trial on the two grounds we have specified.

Judgment reversed.