Edwards v. McKinnon , 25 Ga. 337 ( 1858 )

By the Court.

Lumpkin, J.

delivering the opinion.

Two questions are made in this case. 1st. Was Henry Cherry a competent witness? 2d.“Was the evidence sufficient to justify the verdict,

[1.] We concur with the Court below that ’Cherry was a competent witness. A judgment in this case would be no bar in a subsequent suit, at the instance of McKinnon against Cherry.

In the case of Nesbit vs. Lawson, 1 Kelly, 275, relied on to exclude Cherry, the point was different. Lawson sued Nesbit, as his attorney, for having collected money on a promissory note. Grimes, the debtor, was introduced to prove that he had paid the money to Nesbit. If a judgment had been fixed on Nesbit, by the testimony of Grimes, the right of action against Grimes would have been lost, whether the money was collected or not. For the record would show, (and the plaintiff would be bound by it,) that the plaintifPs attorney had already collected the money of the debtor. The interest of Grimes, therefore, was direct and immediate. Nat so here; for as we have already said, a judgment against Edwards would not relieve Cherry, unless the money was collected. And even it would not necessarily discharge Cherry from a liability to refund to Edwards. Both of them might be liable to McKinnon, as in the case of principal and ■agent, where the agency is not disclosed.

[2.] Taking the testimony of Cherry as competent, ought there to have been a recovery against Edwards ? Through kindness to Cherry, for no other motive can be inferred from the transaction, Edwards agrees to purchase for Cherry are engine to start a mill; and to allow Cherry to reimburse him when he is able to do so, after first deducting the expenses of keeping up the establishment, and supporting his family. This is no partnership, as has been suggested by the distinguished counsel in behalf of the defendant in error.

The engine is bought by Mr. Edwards and shipped to .Newport The agent of Mr. Edwards at Newport refuses •to deliver it to Cherry but upon the order of Edwards. This is obtained by Mr. Cherry, and the engine is delivered to McKinnon, a wagoner, and the plaintiffin the action below, who agrees with Cherry to haul it to Thomasville for fifty dollars. The mill, from some cause or other not distinctly .disclosed in the proof, failing to realize the expectation of the .parties, is re-sold, by the consent it would seem of Cherry, by .Edwards to Moore. And McKinnon, between whom and Edwards there was no contract, express or implied, seeks to hold Edwards liable for the hauling, and so the jury find.

We do not see upon what principle this verdict can be 'sustained. Edwards never employed McKinnon to do this :job. He was under no obligation, legal or moral, to have ■•the engine, transported from Newport to Thomasville. Cher•ry was not his agent for this purpose, so far as the testimomy shows. The work was undertaken and performed upon the sole employment of Cherry. Our conclusion, therefore, is that the finding in the Justice’s Court was not only contrary to the proof, but without any evidence to support it And consequently, that instead of dismissing the certiorari, it should have been sustained, and a re-hearing awarded on that ground.

Judgment reversed.