Daniel & Johnson v. Trice , 31 Ga. 162 ( 1860 )

By the Co%wt.

Jenkins, J.,

delivering the opinion.

The question in this case is, whether the new trial was properly granted.

The Court below ordered a new trial on the grounds:

1. That the verdict was contrary to evidence.

2. That it was contrary to the charge of the Court.

Upon the first point, we think the evidence fully sustains •the verdict. There was no contest as to the cause of action of the plaintiff in the Court below; that was not disputed. The defendants had two defences — failure of consideration, and set-off. The verdict of the jury, therefore, must be understood as affirming, either that defendant proved a total failure of consideration, or that he established a set-off equal in amount to plaintiff’s demand. The two demands were, in fact, very nearly equal. The proof of defendants’ demand consisted in this: that they had purchased of Trice, the plaintiff below, certain leather,' and certain hides, in vats, in the process of tanning — the hides being sold at $1.50 each — • and the number taken from the vat-book, subject to correetion by a subsequent count; the agreement being that if, on count, the number fell short of that assumed, Trice should account to D. & J. for the deficiency, at the price fixed, and if it was over, D. & J. should pay for the excess, at that price. The evidence establishes a deficiency which, at the price fixed, makes T. liable for $51.00. The amount of the plaintiff’s demand was $50.00. The consideration of the note sued on by plaintiff below was, undoubtedly, either the hides so found deficient, or certain leather sold by T. to- D. & J. at, or near the same time. If these sales of hides and leather were one transaction, and the note given in part payment, or if they were different transactions, and the note were given in part payment for the hides, in vats, then the defendants below were sustained on the plea of failure of consideration. If D. & J. had fully paid for the hides, in vats, and the note were, in fact, given for leather, or other thing, sold at a different time, then -defendants below had a right, under our statute, authorizing sets-off at law (Cobb's Digest, 487), to raise and plead as a set-off to this or any other action of1 assumpsit or debt, brought by this plaintiff against them, an account for this deficiency of hides. They did so plead, and proved their account. It is true that the jury did find against the charge of the Court, on the hypothesis that the hides, in vats, were not the consideration of the note; and it is true that the proof is by no means clear that they were so. The Court below charged the jury, that they could not find for defendants on the plea of set-off, and that if defendants failed to prove that the hides in the vats were the consideration of the note sued on, they must find for the plaintiff the amount of his note, principal and interest. In this, for the reasons given, we think that the Court erred— that the verdict of the jury was right — and should not have been disturbed.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below ordering a new trial be reversed, and the verdict of the jury confirmed.