Milledgeville Manufacturing Co. v. Rives

44 Ga. 479

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

Some of the points made in this attachment, and some of the rulings of the Court, on the trial, in reference thereto, are, as we think, good objections, but we do not put our judgment upon them.

1. It is clear to us that this proceeding, in the shape it finally took, ceased to be an attachment at all. The very basis of an attachment is the levy on the defendant’s property. After Waitzfelder was dropped, and the Milledgeville Manufacturing Company was substituted, by consent, for him, it seems absurd to call the proceeding an attachment. There is no levy on the defendant’s property. The attachment is upon its face, on the ground of the non-residence of the defendant, yet the defendant is a Georgia incorporation. We think the necessary consequence of the agreement is, to dissolve the attachment, and, by consent of all parties, to treat the case as an ordinary suit, with service waived. In this view of the case, the amendment to the declaration is unobjectionable, as it is wholly within the Code, section 2429, as to amendments.

2. We are not clear that the Court was not right, in any view of it, in admitting the paper after it was stamped in the presence of the Court. The government got its tax, and that is the great object of the Revenue Act. We are not clear, however, that, to make the instrument void, under the Act, it must not affirmatively appear that the paper was not stamped with intent to evade the law. But, we think the paper was rightly admitted under the agreement of counsel. The very foundation of the suit, as it stands, was the consent that this paper was a valid paper and obligatory upon the defendant. To say it is void is to repudiate the very terms of the agreement.

3. We are very clear, however, that the verdict is wrong. 1st. It is inequitable in a very high degree. The amount actually paid by the plaintiff, in his note, was, at the most, not over $2,800 00, and this in cotton, at thirty cents, when the market price was but twenty-six and one-half; this, too, in cotton badly bailed, with a heavy tare, and very plainly, from the evidence, not up to the mark of a good article. A fair calculation will make the amount paid not over $2,600 00. Yet here is a verdict for the plaintiff for $2,500 00, with interest from the 22d of February, 1867, nearly the full amount paid. In other words, the defendant gets nothing for the note. It would have been better had the. holder of it thrown it in the fire. We are disposed to grant large latitude to juries in their judgment of the equities between the parties, but it is absurd to say this is equity. We do not, however, think the written paper authorizes a recovery at all, except in one event, that there was proof of such a rule having been established as that Confederate contracts are to be scaled at the value of the currency when the note matured. Here was a settlement in fact. The rate of sealing was three to one. Cotton was taken at considerably more than its value. This was the agreement of the parties, both of them of age, and acting on their judgment. Many persons think such a mode of settlement is the only equitable mode, to-wit: the value of the money at the date of the contract, and very often this is true. The parties settled by that rule, but agreed that, if the Courts should settle that the true rule was thevalue of Confederate money at the maturity of the contract, the settlement should be opened. The plaintiff in the ease 2nd the Court and jury seem to have understood this written agreement to be that the parties should hereafter settle at whatever rule the Courts should establish. Such are not the terms of the agreement. The Courts have established that the true rule is “ right in equity and good conscience,” between the parties in view of all the facts. That is not the agreement. The settlement is to be opened in one contingency, to-wit: if the Courts should hold that such contracts are to be scaled at the value of the currency at the maturity of the note. There seems to have been no proof offered upon this point. We know, it is true, what the rule is as established. Is it as provided for in the agreement ? Clearly not. This was a settlement: a fair enough one under the circumstances. The parties agreed that it should be opened in a certain contingency. Until that contingency is proved to have happened no right of action accrued.

Judgment reversed.