Gilmore v. Johnson , 29 Ga. 67 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

This was a motion by the defendant for a new trial on several grounds, all of which resolve themselves into the single one, that the verdict is not supported by the evidence. We think the verdict is supported, and well supported by the evidence. It was argued that the agreement which the complainant seeks to have specifically performed, was not sufficiently proven. The defendant in his answer, while denying it in some places, in another place substantially admits it, for he says his sister asked him to do just what the bill alleges he agreed to do, and that he told her he would do so if he could, and then he went on and bought the property, holding off other bidders by telling them he was buying it for the benefit of his sister and her children; thus getting what would be an unconscionable advantage, if he'is to be allowed to pocket it. Can it be supposed that she and her husband would have stood by and allowed their property to be thus sacrificed, if he had not made them believe that he consented to the proposition? — that bethought he could do it, and had actually undertaken it ? But besides this, long afterwards his sister reminded him of the agreement, and he did not deny it. The proof of the agreement was satisfactory. It was also argued that there was no proof that the husband' was a party to the agreement, as alleged in the bill. Here the argument is equally unfortunate, for the circumstantial proof is very strong that the husband knew of it, and sanctioned it, and this is all that was necessary. If he sanctioned an agreement made by his wife, he made it his own. That he did know of it and sanctioned it, is most strongly shown by the fact that he allowed the defendant to buy his property at prices which he could have prevented by only speaking, and which were ruinous to him -without the agreement. Suppose him to know of the agreement and sanction if, and his conduct is all consistent and rational, otherwise it is foolishly absurd. It is argued, also, that the verdict is against that part of the charge which instructed the jury that they could not give the relief sought unless the evidence showed that Gilmore had been reimbursed the principal and interest paid out by him on account of the agreement, and also such sums as he had advanced for the education of the children, and the maintenance of them and their mother, together with a reasonable compensation for his services. The jury found by their verdict that he had been reimbursed for all these things, and we think the evidence was ample to satisfy them that whether or not he actually had been reimbursed, he at least had had ample means and ample time to have made the means available for that purpose. With his opportunities, he could have failed of being reimbursed only by his own gross negligence. He ought to have got full reimbursement, and equity considers that as having been done which ought to have been done. On any other principle he could forever defeat the complainant’s relief, and continue to hold her property on no better plea than that he-was making a very bad use of it. But the defendant sets up a release from the husband, executed after the defendant had partly executed the agreement, and at a time when he would have pocketed an unconscionable advantage by being allowed to retire from its full performance. It was argued that the verdict was against the evidence, because this release, whatever other proof there was, destroyed the complainant’s right to relief. Upon this release I remark, first, that it shows the defendant felt he had need of one; and, second, it implies that the husband was a party to the agreement, thus adding proof upon the points as to the existence of the agreement, and the husband’s sanction of it. But it is utterly powerless to affect-rights which the wife and children had acquired under the agreement. When by a part performance, disadvantageous to them, the husband and wife had become entitled to a full! performance for the benefit of the wife and children, the matter passed from under the control of the husband just as effectually as if he had made a settlement upon Gilmore in trust for his wife and children. Such a settlement by him for their benefit would certainly not be revocable by him, nor could he release Gilmore from his obligation to perform the trust. In the one case it is a settlement which would be enforced because written, in. the other a settlement which must be enforced because partly performed. The part performance stands in place of the writing. When the husband once raises a trust in favor of his wife and children, he cannot revoke, it, although his agreement remains, under his control (so far as they are concerned) until the trust is raised. An agreement which is wholly executory he may abandon or release when he pleases, but one wholly executed, or partly executed, so as to call for a full execution, vests in them rights which he cannot release nor trade off.

But there are assignments of error here besides the refusal to grant a new trial.

1st. The first is, that the Court erred in admitting the testimony of Philip P. Munroe, to show that defendant and family had frequently stayed with complainant while she kept hotel. The object of this testimony was to rebut a claim which defendant, in his answer, asked to have allowed him for supplies and provisions furnished to complainant and her children. The proof was rebutting in its character, and was, we think, properly allowed. - The objection made to it is that it proves a claim not set up in the bill — that there is no allegation to cover it. It is not a claim in which relief is sought, or a recovery asked; if it were, the objection would be good. It is only in abatement of the defendant’s proof, just as it would be in abatement, after he had shown provisions furnished, to show that half of them, or some part of ■ them had been returned to him. It goes in diminution of Shis proof.

2d. We think the testimony of Mr. Vason, in relation to she entry of satisfaction on the Ji.fa., was properly admitted. 'The objection to it was not that it was secondary evidence, for th.Qfi.fa. was lost; but it was, that the entry of satisfaction by the Sheriff did not show that the legal owner (the ■defendant in this bill) had got the money. We think it does ■afford a presumption that he got it, because it places the (money where he might easily have got it, and where, indeed, fif he had not got it, the failure was his own fault.

3d. The third assignment of error is simply a general demurrer to the bill, and as that was overruled at a former Term •of this Court, we simply refer to that decision now as authority for holding the same way again, and also as res adjudi<sata.

4th. We think there was no error in the charge in relation to hire. The whole charge, taken together, was simply this: ■the defendant must account for reasonable hire, and must •also be allowed his divers disbursements, and that if after allowing all of them, there was still an overplus of hire, the jury ought to find such overplus. This is the fair construction of the charge, as a whole, and it was right. Besides the jury did not find any hire, and, therefore, the charge did not hurt the defendant. We are well satisfied with the verdict, and find no error in the record.

Judgment affirmed.