McCook v. Cousins , 39 Ga. 125 ( 1869 )

Warner, J.

' The error assigned to the judgment of the Court below in this case, is in overruling the motion for a new trial on the several grounds specified in the motion therefor. It appears from the record that Mrs. Cousins, the plaintiff below, and a freedman by the name of Edmund, entered into a contract to farm together on rented land; that they rented the Duncan place for that purpose, and also rented land from McCook, the defendant, and worked both places during the year 1866. It also appears that six weeks before the land was rented from the defendant Edmund, the freedman, had made an independént contract with him to furnish him (Edmund, with provisions for that year, for Avhich one Harp stood Edmund’s security. The dispute between the parties is in relation to the defendant’s retaining the proceeds of the renter’s share of the crop to pay for provisions furnished Edmund, to the exclusion of Mrs. Cousins, who claims her share thereof as one of the contracting parties. There is evidence in the record from which the jury had the right to presume that the defendant had knowledge of the terms of the agreement between Mrs. Cousins and Edmund, as to the manner in which they were working and making a crop together on the rented land; and if so, the defendant had no right to retain out of her share of the proceeds of the crop what was due him for provisions furnished Edmund, without her consent, the more especially when it appears that six weeks before the land was rented to Edmund and Mrs. Cousins, the defendant had made a special contract with Edmund to furnish him provisions for that year, and had taken other and independent security therefor. The defendant should pay Mrs. Cousins her share of the crop made on the land, and if Edmund’s share thereof is not sufficient to reimburse him for provisions furnished, then he must look to Edmund and his security for the balance that may be due.

The charge requested of the Court by the defendant’s counsel was properly refused, on the ground that it assumed that the defendant had the right to retain the entire proceeds of the sale of the cotton, to reimburse himself for supplies furnished the negro under the contract, whereas, in no event did he have the right to retain the entire proceeds of the sale of the cotton to reimburse himself, unless the provisions furnished should be of sufficient value to amount to the entire proceeds of the sale of the cotton, which was proved to have been $841 21. The evidence of the witnesses on the trial was conflicting, but their credibility was a question for the jury-

The ground taken for newly discovered evidence is entirely too vague and uncertain to sustain a motion for a new trial. In view of the facts of this case, as disclosed by the record, we are of the opinion that the Court below did not err in refusing to ¿harge the jury as requested, nor in the charge as given, and that the motion for a new trial was properly refused.

Let the judgment of the Court below be affirmed.