Augusta Manufacturing Co. v. Wellborn , 31 Ga. 365 ( 1860 )

By the Court. —

Lyon, J.,

delivering the opinion.

1. The new trial was erroneously allowed in this case, as we think the evidence was sufficient to authorize and require the jury to find for the plaintiff, as they did.

The two bills of goods, on which the suit was brought, were due and payable as follows: One for $250 was sold and delivered on the 26th of April, 18.54, and due at six months, say on the 26th of October, 1854; the other was sold and delivered on the 30th of December, 1854, for $266.26, and due on the 30th of June, 1855. The plaintiff, having sufficiently proved the sale and delivery of these bills at the prices charged, was entitled to recover.

The payment made by the defendant, on the 13th September, 1854, of two hundred and forty dollars, evidenced by the letter of the treasurer of the 14th September, 1854, and which was plead by defendant as a part payment on the two bills, did not, in the opinion of this Court, apply properly as a credit to the bills sued on. The account sued on, and the evidence of the plaintiff, showed that the defendant had purchased a bill of goods previously to both of these, to wit: on the first of February, 1854, which was due on the first of August, 1854. The letter, acknowledging the receipt, and the only evidence, defendant had of its payment, stated that it was to his credit and the account sued on, and the evidence of the clerk showed that that payment was applied, to the bill that was- sold on the first of February, 1854. Another circumstance is, that, when this remittance was made, neither of the two bills sued on was due. That of the first of February, 1854, was, and although there is nothing wrong in paying money on accounts in advance of their maturity, yet where there are two accounts, one past due a month and a half, and the other the same time to run before maturity, and a remittance is made, in the absence of all other proof, the presumption would be, that it was intended to apply to that which was past due. Another circumstance in this evidence, and a very conclusive one, is this: in the letter of defendant, of 28th December, 1854, and when the last bill of goods was ordered, he remarks — “I will remit you the balance of former purchase about the 15th January. Money is scarce. Times dull.” If the remittance of $240, on 13th .September, applied to the bill due 26th October, it would have paid the whole of that bill .but about $10. Defendant would hardly have thought it necessary to excuse himself for so small a balance, when, all but that had been paid up so long before its maturity. Then, again, the remittance was just the amount of the bill of 1st February, 1854, or within seventy cents of it. With all these circumstances to support the verdict of the jury, it ought not to be disturbed.

No importance was attached to the evidence of Jolly, either by counsel in the argument, or by this Court. What he did know about a remittance evidently related to that of September, 1854.

2. The interference by this Court with the discretion of the Court below, in granting or refusing a new trial, is made a duty by the new trial Act of 20th February, 1854. Pam. Act 47.

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 granting a new.trial in said case.