Adams v. Eatherly Hardware Co. , 78 Ga. 485 ( 1887 )

Blandford, Justice.

The question in this case was, whether certain goods had been sold by the Eatherly Hardware Company to C. L. Laney individually, or to O. L. Laney & Co. Upon the trial of the case, Eatherly and another member of the firm (the Eatherly Hardware Company), over objection of the defendant, were allowed to testify that these goods had been sold to Laney, and how it came that they treated with Laney individually and not with Laney & Co. Laney being dead, it was objected that this testimony was inadmissible. The court overruled that objection and allowed the testimony.

We think the court was wrong. Under the act of 1866, Laney being dead, these parties -were incompetent witnesses. They were incompetent at common law, and could only be competent under the statute; yet by the provisions of the act of 1866, which prescribes that where one of the original parties to the contract or cause of action is dead, the other party shall not be permitted to testify, the law is left just where it stood before the passage of the act. For this reason, we think that the court erred. Furthermore, we think the testimony itself was inadmissible. They testified as to what took place in their own minds; to conclusions they had arrived at. Their impressions were allowed to go to the jury. This was improper testimony.

2. The defendant introduced, or offered to introduce in evidence, certain letters written by the Eatherly Hardware Company to Peterson & Co., which tended to show that the goods were sold to Laney, and not to Laney & Co. These letters stated that the account was against C. L. Laney, and directed Peterson & Co. to protect their rights. The court rejected the letters. We think this was error. This testimony tended to show that the goods were sold to Laney individually, and the court erred in rejecting it.

3. Another ground of the motion was in regard to newly discovered evidence, part of which was a certain telegram, which if introduced in evidence would have shown conclusively that while the goods were originally charged to Laney & Co., yet Laneyjhaving informed the Eatherly Hardware Company of the dissolution of the firm and that the goods were being purchased by himself, they ratified it as a sale to Laney individually, and made him their debtor and not Laney & Co. On another trial of the case, this evidence can be admitted, and will show very clearly that there is no liability on the part of Adams as surviving partner of Laney & Co.

We think the court below erred in refusing to grant a new trial; and the judgment is reversed.