Tilman v. Stringer , 26 Ga. 171 ( 1858 )

By the Court.

Lumpkin J.

delivering the opinion.

But for the finding of the jury, it would be difficult to sustain the judgment in this case. The charge of the Court was wrong, but the verdict of the jury was right. The Court instructed the jury that if they found that the negro was unsound at the time of sale, and had become entirely worthless since, they should give their verdict for the whole amount of the purchase money with interest, “notwithstanding the negro may have been of some value at the time of sale. or. afterwards.”

The price paid for the negro was f§00. The verdict of the jury was for that amount luithout interest. The jury therefore, must have set off the hire against the interest. In other words, found that the hire of the negro was worth the interest on the purchase money. Considering the negro of some value, they not only allowed the defendant something, but a pretty full price; at the rate of $63 per year for the use of the negro.

This sum seems large; but it is what the plaintiff paid for the woman. If the price be' exorbitant, the defendant fixed it. That was the estimate put by him on the property at the time of sale Too high, we have no doubt; still, it was exacted by the defendant and paid by the plaintiff. And consequently constitutes the proper basis for estimating the damages in this case.

Although the charge of the Court be wrong, still if it does not control the jury, but they find contrary to it, it is not ground for a new trial, even under the New Trial Act of 1853-4.

We find no merit in the other grounds.

According to our understanding of the evidence, the verdict in this case is based upon the fact that an offer was made, and refused, to return the negro. The verdict can only be sustained upon that hypothesis.

We shall affirm the judgment, then, provided the plaintiff will, within a reasonable time, return the woman to the defendant, or offer to do so.

Judgment affirmed conditionally.