Camp v. Phillips , 42 Ga. 289 ( 1871 )

McCay, J.

This is a case under the Relief Act of 1868. Before that Act, the defendant in the judgment would have been compelled to set up her rights in equity. Under that Act, she asserts them in a Court of law. Her claim is, that, by the conduct of the plaintiff in the judgment, since the date of the contract, and since the judgment an equity has arisen between them,, which, under the Act of 1868, she is entitled to have adjusted.

It is admitted that if, in fact, Phillips sold his property for bank bills, or procured bank bills in any way, on the promise of Camp to take them in discharge of the judgment, and Camp, after Phillips had so procured them, capriciously refused to receive them, and they were lost in Phillips’ hands, then such an equity does exist. The whole case turns on the facts. They have been submitted to a jury, the jury has passed upon them, the Judge has refused a new trial, and an appeal is made to this Court to set aside the verdict and reverse the judgment of the Court.

To justify this, the verdict must not only be strongly and decidedly against the weight of the testimony, but the Judge must have abused his discretion in refusing to disturb it. It comes to us under the sanction of the decision of twelve sworn men, neighbors of the parties, clinched by the judgment of the Court who heard the evidence. For myself, I believe the verdict of the jury to be right, on the facts.

It is perfectly established that Phillips sold his property for the purpose of paying his debts; that Camp promised him he would take bank bills; that Phillips required of the purchaser bank bills; that such a requirement was unusual and bank bills at a considerable premium, indeed, as the histoiy of the times is, they were thought to be as good as gold; that this particular execution was in the mind of Phillips and of the purchaser; that Camp refused to take the bills, though tendered by the sheriff, shortly after the sale, and that the bills were lost by the results of the war. There is not a break in this testimony but one. It is not, I admit, perfectly clear that Phillips acted on the promise of Camp, or that this promise of Camp was before the sale of his property by Phillips. The dates of the several events are not given in the bill of exceptions, but it seems to me that the evidence of Camp’s promise being anterior to the sale is sufficiently strong to sustain the verdict.

The money does not seem to have gone into Phillip’s hands at all. Evidently the purchaser required it to be passed directly to the officers; as the execution was in Camp’s hands, they make the offer to pay. Evidently the money was procured by Phillips, deposited with the Clerk and tendered in view of the promise. The inference from the actual facts is strong. Why should Phillips exact bank bills? Why should the money be deposited with the Clerk? Why should Camp admit to the sheriff that he had made the promise, if it was not understood that the promise to take the bills was Phillips’ motive for the sale and for exacting the payment in bank bills. We think the jury had a right so to conclude. Indeed, we do not doubt but that this was the truth of the case. If this be so, the equity of the case was with the complainant, and the verdict ought to stand. The inference from the whole conduct of Steedman, Phillips, the sheriff, and of Camp himself, that this promise was before the sale, is, to my mind, very strong, and I cannot consent to set aside this verdict, and hold the jury to have acted contrary to the evidence, because I cannot say that the inference is irresistable.