Henderson v. Merritt , 38 Ga. 232 ( 1868 )

Warner, J.

The error assigned in this case to the judgment of the Court below, is in rejecting the evidence offered by the defendant to prove the agreement set forth in the record, in consideration that he would not certiorari the case decided by the County-Court, and in striking out the defendant’s plea of non est factum. This was not such a consent between attorneys and parties as is contemplated by the rule of Court requiring such consent to be given in writing; or rather, it does not come within the reason and spirit of that rule. It .was not a consent to waive evidence or pleading. It was a contract, executed by one party, by which he declined to certiorari, in consideration that he should be allowed to file his plea of non est factum when suit should be instituted on the notes. The forbearance to sue out the certiorari from the decision of the County-Court, was a sufficient consideration to support the contract, and the plaintiff, having had the benefit of the contract, it was a fraud upon the defendant not to execute it in good faith on his part. The rule of Court was intended to prevent surprise and fraud, not to sanction or protect fraud. Good faith and fair dealing require that the plaintiff should perform his part of the contract, especially as he has had the benefit of it. From the facts presented in the record, we think the Court below erred in ruling out the evidence offered to prove the contract between the parties, and in striking out the defendant’s plea.

Let the judgment of the Court below be reversed.