Collins v. Loyd , 31 Ga. 128 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Collins sued Loyd on a promissory note for $800, given ia July, 1851, and due 25th of December, 1852, with interest from date — the consideration for which was a lot sold in the-city of Atlanta, by Collins to Loyd.

To this action the defendant pleaded a set-off of $281, paid by him, for the plaintiff, to one Joshua Gilbert, on a medical-account, due by Loving G. Collins to Dr. Gilbert.

, As a reply to this plea of set-off the plaintiff proposed to-prove the following facts, to- wit: That previous to the year-1847 he and Loyd had been partners in trade; that a dissolution took place before the 21st of October of that year;, that on the day last aforesaid Loyd receipted to- the firm of' Collins & Loyd for an account due the firm- b-y Dr. Gilbert o-f $309.13, promising in the body of the receipt to pay over an account to Collins for one-half of said firm debt, when, collected. And in connection with this receipt Collins relied on the evidence of Dr. Gilbert to establish that this-account due by him to the firm was included in.the settlement between Loyd and himself, made in February, 1855,. the time when Loyd claims to have paid the $281 for Collins — -Collins insisting that in the $281 was included the-one-half o-f Dr. Gilbert’s firm debt coming to him, namely,. $154.56^2. In other words, tiiat that amount of the $281 was paid with his own money; and that, consequently, instead of Loyd’s being entitled to a credit of $281, he could only claim the difference between $281 and $154.56^.

Dr. Gilbert was examined by commission, by Loyd, and' very closely cross-questioned by the plaintiff, as to- the manner in which the $281 was paid — whether in money and how-much — and whether an account due by him to Collins & Loyd-i was not taken into the settlement ?

His answer is unsatisfactory. He answers : “The defend-ant (viz.: Loyd), paid him some money, the amount he can, not recollect. It was a small account. The money was paid the day the receipt bears date (namely, his receipt for $281,. paid by Loyd to him, for Collins). That was the day of' settlement.”

■ His Honor, the presiding Judge, on the idea that the-receipt given by Loyd to Collins, in 1847, was barred by the-Statute of Limitations, . and that if the money ■ had been-collected by Eoyd the presumption was, it had been accounted for, or from some other consideration, ruled out Eoyd’s receipt for the Gilbert debt to the firm.

: We can not concur in this view of the transaction. There is not,a particle of proof that this account was settled prior to February, 1855. The fact that there were counter-claims outstanding between these parties may explain the cause of this delay. It is' clear, from Gilbert’s testimony, that the whole amount of the $281 paid by Eoyd to him, for Collins, was not in money. Gilbert says, “some money was paid:” from which it may be fairly inferred that a portion, at least, if not the bulk of the payment, was in something else. The witness swears' there was a small account due by him to Collins & Eoyd; and it is deducible from his language, that that account, bp it more or less, was included in the settlement.

Now, if there was any other account due by Gilbert to Collins & Eoyd, except the one receipted for by Eoyd in 1847, why was it not shown ? It was an affirmative fact and susceptible of easy proof. • But again: the firm of Collins & Eoyd having dissolved prior to October, 1847, it almost amounts to a demonstration that there was but the one account, and, therefore, the one taken into the settlement.

And if the $281 was paid in part by Collins’ money, the statute of limitations is not in his way, nor will it, till the end of time; but will come up for his protection whenever Eoyd seeks to hold him responsible for the $281.

A new trial was asked by Collins on the ground that, since the trial, he had discovered that he could prove by one Cicero Chandler that Eoyd had stated to him that, instead of $281, there was only some one hundred and thirty or one hundred and forty dollars due him by Collins; and Chandler gives his affidavit that he will testify to this admission, should there be a re-hearing.

The Judge repudiates this ground for a new trial, not because the proof is cumulative merely, as that it is not pertinent to the issue, or that there has been any want of diligence in not finding it out, but to discourage the practice- of making this sort of testimony the ground for a new trial.

Now, while we may concur with our brother upon his view of what the law ought' to be, we do not feel at liberty to deprive a party of a clearly recognized right, allowed to him fyy law, on the score .of policy. Our statute only forbids the granting a new trial upon newly discovered evidence which is cumulative merely, and not because the witness proposes to testify as to the verbal statements and admissions of the party; and the more especially should the new trial be awarded, because the declarations made by Loyd corresponds so nearly with the other facts developed in this case, and all going to show that the defendant has obtained a credit for too large a sum by the difference, at least, between $281 and $154.56^ —the one-half of the account due by Gilbert to the firm of Collins & Loyd — to say nothing of the mistake in calculating •interest on the note sued on.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, •that the judgment of the Court below be reversed, upon the •ground that the Court erred in not granting a new trial.