Crockett v. Chattahoochee Brick Co. , 95 Ga. 540 ( 1894 )

Judgment affirmed.

Defendant assigned error on the overruling of the objection before noted, and on the following charge to the jury, as without evidence to authorize it: “Now, if you shall believe from the evidence that Mr. Foote, by virtue of his being the architect and supervisor of the buildings, went to the Chattahoochee Brick Company to purchase these brick in the name of Mr. Riden, and that the Chattahoochee Brick Company refused to credit Mr. Riden, not knowing him, but as Mr. Crockett was the owner of the property they would be willing to credit Mr. Crockett, and then Mr. Foote told them to charge them to Mr. Crockett unless Mr. Crockett refused to have it done, that he would inform him, and if he did not send them word that Mr. Crockett had refused to carry out the contract that he had made, refused to he liable for it, then they might deliver the brick; — now, if you believe from the evidence, that Mr. Foote, before the delivery of any of the brick, informed Mr. Crockett of all the circumstances that occurred between him and the Chattahoochee Brick Company, and Mr. Crockett assented to that, and the bricks were afterwards delivered, that would make Mr. Crockett, in the law, the original contractor, that he contracted the debt originally himself, that that credit was extended to him. But if, on the other hand, you do not believe there was a statement made of all the circumstances connected with it, of the manner in which this was brought about, to Mr. Crockett, or that Mr. Crockett did not assent to it, did not assent to the arrangement which Mr. Foote had made, then of coui’se it would follow that he would not be liable. That is simply a question of evidence for you to decide, applying the law I have given you in charge to the evidence.”

The court further charged: “Now, there is a rule that the judge may give to the jury as to how they shall consider and treat the evidence. If the evidence in the case is conflicting, then the jury may found their verdict on what they believe to be a preponderance of the evidence. By the preponderance is meant the greater weight of the evidence; hence, if the evidence is both ways, that Mr. Crockett did assent to this arrangement,, on the one side, and that Mr. Crockett did not assent to this arrangement, on the other side, why then you are to come to your conclusion from the greater weight of the evidence, provided you cannot reconcile the evidence so as to make it speak all one way. It is the duty of the jury to reconcile the evidence if they can, so as to make it all speak one way; but if they cannot reconcile it, then the law allows them to find, as I have stated to you, upon the preponderance or greater weight of the evidence.” Alleged to be error, because it confines the application of the rule to a particular portion of the testimony (as to the assent of Crockett to an arrangement made by a witness on the other side), thereby intimating that there was a conflict of evidence on this question, and that the finding of the jury should be as they should determine this question.

Other assignments of error, on the admission of evidence over objection for irrelevancy, need not be stated.

Candler & Thomson, for plaintiff in error. John S. Candler, contra.