Jones v. Keaton , 22 Ga. 582 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

The Court granted a new trial on the ground that the verdict of the jury was contrary to evidence. Many of the itéms in the plaintiff’s account are not proven at all. No evidence was submitted as to money loaned. The intestate admitted to one of the witnesses that he had one hundred dollars of plaintiff’s money in his hands. He does not specify the time at which he made the statement. If Montgomery received from Cheever the $187 50-100, it may have been a part of that. We think there is evidence enough to justify the conclusion that the money paid by Keaton on his note to Cheever, went into the hands of the intestate, and that the house was built by plaintiff, and was worth seventy-five dollars.

But the witness, Carlisle, testifies that after the death of Montgomery in a conversation with the plaintiff, he said that Montgomery was owing him but little, that he was behind with him twenty-five or thirty dollars, for work on his house, with his grocery, but not much. There is no discrepancy between the testimony of Carlisle and that of the other witnesses. The plaintiff’s witnesses prove some of the items in plaintiff’s account, but they say nothing, one way or the other, in regard to payments, and their evidence applies to a time before his death, and the intestate may have been indebted to plaintiff the several amounts testified to by them, and may also have paid them principally before his death.

Carlisle’s evidence is perfectly consistent with the proof made by plaintiff’s witnesses. He does not deny but that the intestate may have owed the plaintiff every dollar proven by his witnesses, but he says that the plaintiff admitted to him, that at the time of intestate’s death he owed him but little. An attempt was made to discredit him ; but one witness only was introduced for that purpose and testified in a manner not very satisfactory. He said that he knew his character when he lived in Newton, and that he had none for truth and veracity, and that he could not swear that he would believe him on his oath in a Court of justice. But he does not say he would not believe him. This is one witness’s oath against another, which is not sufficient of itself. This case must go back for a new trial, and the plaintiff will have time to look up witnesses to impeach, and the defendant witnesses to support his character.

Judgment affirmed.