Floyd v. Wallace , 31 Ga. 688 ( 1861 )

By the Court. —

Ryon, J.,

delivering the opinion.

1. The object of the questions propounded to the witness, Hargroves, by counsel for defendant, the objections to which form the first and second grounds of the motion for new trial, was to elicit facts that would show the bias or interest of the witness against the defendant, or in favor of the plaintiff, and thus to disqualify or discredit the witness before the jury; for this purpose, great latitude ought to be allowed by the Court, especially as, after everything is out, it is for the jury to believe the witness or not, as they may be convinced, and as the answers, if in the affirmative, might have a tendency in that way, we can not say they were improperly allowed.

2. Although it was not competent to use the statements of the witness, Hargrove, as original evidence against the right of plaintiff to recover, still it was competent to put those statements in evidence for the purpose of impeaching the plaintiff’s witness, Hargroves; a proper foundation' first having been laid for the introduction of such declarations.

3. The order of the Court of Ordinary of Burke county, authorizing defendant as administrator of Isaiah Sapp, deceased, to sell the timber in Screven county, cut by intestate in his lifetime, from the land of plaintiff, ought to have been admitted by the Court as evidence, for it served two purposes, first, to show that the estate of intestate received the benefit of the timber, which was the foundation of the suit. Secondly, it would have a tendency to negative a partnership between the intestate and the witness, Hargroves, in the timber. If such a partnership existed, Hargrove, as survivor, would have been entitled to the timber, for the purpose of paying debts, etc. Hence the exclusion by the Court of that order was error.

4. The acts and admissions of the administrator ought to have been admitted by the Court as evidence against him in favor of the plaintiff. See Sample vs. Lipscomb, 18 Geo. 678; Griffin vs. Inferior Court, 17 Geo. 96; Lawson vs. Powell, decided at this term.

5. If it is true, as testified by William B. Hargrove and Henry Hargrove, that this timber was cut on the land of the plaintiff, upon the special contract with the plaintiff, that defendant’s intestate would pay him, the plaintiff, for it, at the price agreed upon; then the plaintiff is entitled to recover of the defendant, whether there was a partnership between Sapp', the intestate, and Hargroves, the witness, in the timber or not, for that is the contract, and to hold otherwise is to vary the contract without the assent of Sapp or the plaintiff. The rule on this subject, as well settled, is this: if a credit is given to one member of a firm on his own security only, it does not become a partnership debt, although the partnership received the full benefit of the transaction. Buckner vs. Lee, 8 Geo. 292; Logan vs. Bond, 13 Geo. 176; Story on Part. §139; Welker vs. Wallace, decided at Atlanta, Sept. Term, 1860. It follows that the charge of the Court to the jury, as stated in the seventh ground of the motion for a new trial, that “if they believed Hargroves and Sapp were partners in cutting timber, plaintiff could not recover,” as applied to the facts of this case, was erroneous. A new trial must be allowed on the fourth and seventh grounds of the motion.

JUDGMENT.

Whereupon, it is adjudged by the Court, that the judgment of the Court below be reversed on the ground: 1. In excluding from the jury the order of the Court of Ordinary, granting leave to defendant to sell certain cut timber, in Screven county, and the acts and admissions of defendant, that he was going to, and had sold the timber. 2. In charging the jury, as the law of this case, “that if they believed Hargrove and Sapp were partners in cutting the timber, the plaintiff could not recover.”

The Court should have charged the jury, upon the facts of this case, “that if the contract was made with the intestate, Sapp, and the credit extended to him by plaintiff, and not to the firm, that then the estate of Sapp was alone liable for this debt, notwithstanding there might have been a partnership between Hargroves and Sapp in this timber.”