Mulligan v. Bailey , 28 Ga. 507 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

It is assigned as error in this case that the court admitted the testimony of Matlick, Newberry and Bridwell, as to the contract respecting the mare, Sally Hatch. The objection assumes that the trades of the mare and of the negro were distinct transactions ; hence that this evidence was irrelevant. There is proof, however, that they were one and the same transaction; and one of the objects for which this proof was offered was to show that fact. Of course then it was right to refer the testimony to the jury.

And concede the trades were at different times, and the jury should believe, as they had a right to do, that they were only different acts, in the same drama, the negro trade being but the consummation of the original scheme, in that view of it the evidence was clearly admissible.

Another error complained of is, the rejection of the testimony of William Harrison, who was offered to prove certain statements made to him by the witness Benj. F. Newberry, calculated to discredit the depositions of New-berry. This was not the proper way to expose the mala, jides in the execution of the interrogatories. Why was not Newberry himself re-examined ?

As to the charges of the court, we see no evidence in the record that Bailey was attempting to practice a fraud upon Mulligan. If this were so, there was no misdirection in the charge. It was calculated-to prejudice the defendant and not the plaintiff. And as to the second charge, it is sound law. A fraud may be as effectually perpetrated by telling the truth as a falsehood; by calling things by their right names as by their wrong names. And the very case put in the charge illustrates the fact.

It is insisted that, in as much as the negro was delivered, the contract was complete as to him; and that Mulligan is entitled to recover possession of him in this action of trover.

Concede that the negro was delivered — though actually he never was- — instead of going to Mulligan’s when he left Tucker’s, where he was hired at the time of the trade, he returned to Bailey; Mulligan, to recover possession of the boy, would have to rely upon his title from Bailey; and if that was void, on account of the fraud with which it was tainted, he must fail necessarily to make out his right of possession.

Whether the verdict is contrary to the testimony it is difficult to say. We are not prepared to say, in the language of the motion for a new trial, that it is so strongly and decidedly against the weight of evidence as to shock the moral sense. Whether the contract for the marc and for Dave was one and the same contract, there is a conflict in the testimony. Whether Mulligan sold Bailey one mare and by artifice, falsely imposed another upon him, the witnesses are not agreed.

This is a transaction which addresses itself peculiarly to the experience of the jury. . They knew both the parties and the witnesses, and could best judge between them. They have found for the defendant, and the court has refused to set aside their verdict. It can hardly be expected that we should award a new trial. Solomon said there were four things which he knew not- — to which he might have added a fifth: the tricks of a quarter racer. My experience and observations are, that no horse jockey is to be trusted in a trade.

It would seem that Bailey having repudiated the contract as fraudulent, ought to return the mare and the money paid him by Mulligan. But we give no judgment Upon this point.

Judgment affirmed.