Rooney vs. Grant & Co.

LAWRENCE ROONEY, plaintiff in error, vs. JOHN J. GRANT AND COMPANY, defendants in error.

When a case had been brought up to this Court by writ of error which was dismissed without a hearing, upon the merits of the case, and the judgment of the Court below was affirmed; and a motion was made for a new trial in the case, in the Court below, without including in the motion the grounds upon which the new trial was sought: Held, that there was no error in the Court below in overruling the motion for a new trial in the case, as the same was presented.

Practice. Motion for New Trial. Before Judge JOHNSON. Muscogee Superior Court. May Term, 1869.

Rooney averred that he stored with Grant & Company, as warehousemen, cotton, to be kept in a particular place, and with notice to them, insured it, as being in that place; that, without notice to him, they put it into a different place, where it was burned, and thereby he could not recover his insurance. He claimed of them the value of the cotton and his premium paid out. The jury found for the defendant.. Rooney moved for a new trial, upon the grounds that the Court (Judge Worrill) erred in a part of his charge, and that the verdict was contrary to the evidence. His motion was overruled and he sued out a writ of error.

At June Term, 1869, of this Court, said cause was dismissed, and the judgment below, was affirmed, because the bill of exceptions did not contain the evidence heard in the Court below. (See 38th Georgia, 597, note.) Counsel for Grant & Company, at May Adjourned Term, 1869, of Muscogee Superior Court, presented the remittitur, and had the judgment of the Supreme Court made the judgment of that Court. Counsel for Rooney, "at that time notified the Court that they had a motion for a new trial to make. The Court (Judge Johnson) stated that if the cause had been carried by writ of error to the Supreme Court, and judgment affirmed, a motion for a new trial would not be entertained, and did then and there refuse to entertain said motion for a new trial." This refusal is assigned as error.

Rooney vs. Grant & Co.

R. J. MOSES, for plaintiff in error, cited Irwin's Code, sections 3668, 3027; 23rd Ga. R., 493; 37th Ga. R., 673.

SMITH & ALEXANDER, for defendants.

WARNER, J.

This was a motion for a new trial in a case which had been brought up to this Court and dismissed here, without a hearing, upon the merits of the Court below was affirmed.

case, and the judgment of the When the case went back to the

Court below, a motion was made there for a new trial, without including in the motion the special grounds upon which the new trial was sought to be obtained. The motion for the new trial was refused. In our judgment, there was no error in the Court below in refusing the motion, as the same was presented there. To have entitled the movant to a new trial in the case, he should have stated in his motion therefor, the special grounds on which he claimed a new trial, so that the Court could have considered the materiality and sufficiency thereof. If the special grounds for the motion had been set forth, and the same would have been sufficient to entitle the movant to a new trial, the refusal of the Court, upon that state of facts, to entertain the motion, would have been error. As the motion was presented to the Court below, the judg ment was right in refusing to entertain it, no matter what reasons were given for the refusal. To entitle the movant to a reversal of the judgment of the Court below, he must show, from the record, that the special grounds on which his motion for a new trial was based, when presented to the Court, were such as would have entitled him to a new trial, and such as the Court below should have entertained and allowed. Let the judgment of the Court below be affirmed.

Horne et al., vs. Young et al.

J. R. HORNE et. al., plaintiffs in error, vs. THOMAS YOUNG et. al., defendants in error.

In 1864, the holder of a promissory note, made in 1860, at the demand of the security, gave up the note and took from the principal a new note, with other security, which last note was to be paid in Confederate money: Held, that this was a new contract, and the amount due thereon is to be ascertained under the Ordinance of 1865, relating to contracts made during the war.

2. Held, further, That in adjusting the equities between the parties, the jury may look into the original consideration, the value of the old note, at the time of the new contract, and the different relation of the principal and securities to that consideration, and should the evidence so authorize, they may, under our law, find a verdict for one amount against the principal, and another against the securities, accordingly as they may find the true equities of the parties.

3. In cases arising under the Ordinance of 1865, for the adjustment of Confederate contracts, either party may be a witness, notwithstanding one of the contracting parties is dead.

Novation. Evidence. Scaling Ordinance. Security, etc. Before Judge COLE. Dooly Superior Court. October Term, 1869.

Young and his wife, formerly Loduskà P. Walters, sued said Horne, A. J. Pound and James O. Farrell, upon a promissory note for $1,277 85, made by said defendants, in February, 1864, and payable one day after date, to Irwin Bullock, guardian of said wife; and Young, as guardian of D. M. Walters, sued said defendants on another note exactly like the other, except that it was payable to Bullock, guardian of D. M. Walters. Horne and Pound were served. They pleaded, 1st, the general issue; 2nd, that it was expressly agreed by and between said Bullock and Horne that said notes should be discharged by bonds of the Confederate States, and that, in pursuance and performance of said agreement, Horne, by selling his property, procured Confederate Treasury notes, and, by direction of Bullock, converted them into Confederate certificates, and held them for Bullock's use, but did not convert them into bonds, only because the Confederate States never issued the bonds called for by the cer

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Horne et al., vs. Young et al.

tificates; 3rd. Pond pleaded that he and Farrell were but securities for Horne, on said notes, and became such upon the express understanding and agreement with Bullock, aforesaid, and that Horne performed said agreement, as aforesaid; 4th, that, at the date of the notes, they were worth $13,950 00, that since that time they had lost $11,000 00 worth of property, without their fault, and claimed the benefit of the "Relief Act" of 1868.

Plaintiffs' The defend

of

By consent, the two cases were tried together. attorneys read in evidence the notes, and closed. ants' attorneys offered to prove by the defendants that the facts stated in the 2nd, 3rd and 4th pleas were true. It being admitted that Bullock was dead, the Court held them incompetent witnesses. It was then shown that Bullock, as guardian of said Loduska and D. M., in 1859, or 1860, took Horne's note, with one Collier for security, that in the latter part 1863 he received a part of what was due on said note, and the balance was tendered to him in Confederate Treasury notes, that Bullock refused to accept said tender, but promised to release Collier, if Horne would give other security, that the notes sued on were given for said balance, to relieve Collier from his suretyship, and that Bullock, after these notes were made, said that it was understood that they were to be discharged as pleaded above. The loss of property, in amount about as pleaded, was shown; Confederate Treasury notes were shown to have been worth, in specie, but one-twentieth of their nominal value, at the date of the notes, and it was shown that on the 15th of March, 1864, Horhe did procure a certificate from the agent of the Confederate States, showing that he, Horne, was entitled to four per cent. bonds of said government, for $3,500 00, so soon as they were issued. It was also shown that Horne sold provisions to a purchasing agent of said government, for Confederate Treasury notes, early in 1864, and that Young had no interest in the notes, except as husband in one case, and guardian in the other.

The Court charged the jury that if these notes were in renewal of a note made in 1859, or 1860, plaintiffs should recover the full principal and interest called for by the faces of

Horne et al., vs. Young et al.

the notes; that Bullock, as guardian, had no right to convert the money of his wards in Confederate securities, without an order of Court, and, that in the absence of said order, they should find for the full amount of said notes, notwithstanding any agreement to accept such securities, in satisfaction of said notes; that, under the Ordinance of November, 1865, a contract in renewal of a contract which existed before June, 1865, could not be "scaled;" that these notes were neither a novation of the contract of 1859, or 1860, aforesaid, nor could they be treated as an accord and satisfaction.

The jury found for the plaintiffs, against both defendants, for the full amount of each note, and costs. Defendants' counsel say the Court erred in holding said defendants incompetent because Bullock was dead, and in each clause of his charge.

PATE & RYAN, S. ROGERS and S. HALL, for plaintiffs in error, said defendants were competent under the Ordinance of 8th of November, 1865, under section 5 of the "Relief Act" of 1868, and under section 1, of Act of 18th December, 1866; guardians could invest, ward's funds, in Confederate securities Act 18th April, 1863, Acts December 1861 and 1863, and 21st March, 1864, Ordinances 6th and 8th, November, 1865, Campbell vs. Miller, 38th Ga. R., 304. The security could not be bound further than he agreed to be: McMicken vs. Webb et. al., 6 How. R., 298; Struman vs. Magnus, 11 East., 390; Slaughter vs. Culpepper, 35th Ga. R., 25. As to accord and satisfaction: Irwin's Code, sections 2682, 2125, 2827, 2830; 20th John R., 76; 1 Wend. R., 172; 3 Wend. R., 68, Bou. Ins., 310, 1 Domat, 914; 1 Poth. on Ob., 339, et. seq., 343.

W. A. TIGNOR and JAMES ARMSTRONG, for defendants, said this was not a novation, nor accord and satisfaction: Ir.. Code, sections 2682, 2125, 2707, 2709, 2827, 2830, 5090; 1 Bou., 310; 26th Ga. R., 537; 13th Ga. R., 406; the Acts cited did not allow the investment by guardians, as claimed, and were passed to protect them against their wards; that the defendants were incompetent under the Acts and Ordi