Abel v. Jarratt & Co. , 1897 Ga. LEXIS 134 ( 1897 )

Pish, Justice.

Abel brought suit against defendants upon a promissory note. ■ Upon the trial there was a verdict for defendants. Motion for a new trial was made ’and overruled, and plaintiff excepted. The facts and grounds of the motion passed on appear in the official report.

1. In order to entitle the defendant in a civil action,, arising ex contractu, to the opening 'and conclusion of the-argument before the jury, by virtue of an admission that the plaintiff has a prima facie right to recover, the defendant. must, before the introduction of any evidence, admit facts authorizing, without further proof, a verdict in the plaintiff’s favor for the amount claimed in the declaration. It is too late after the plaintiff has made out a prima facie case for the defendant to make any admission which will deprive the plaintiff of the right to open and conclude. The general ¡rule is that the order of argument follows the burden of proof; and whoever opens the case with the evidence, if he has a right so to open, has the same right in the argument. McKibbon v. Folds, 38 Ga. 235. The ruling in McCalla v. American Freehold Co., 90 Ga. 113, relied upon by counsel for defendants in error, is not in conflict, with the foregoing. There it was held that, when the court, by mistake, and before any evidence was submitted, ruled that the burden of prcxo-f was ion the oiaimlanit instead of upon 'the plaintiff 'in lexecultiion, the mistake might be corrected on its discovery, even after all tbe evidence had been ¡intoodiiieed, 'am'd that it was molt error then to hold that the burden of proof rested on ¡the plaintiff, and, for that reason, to .allow him to open and conclude the argument. In -that ease the court, before any evidence was introduced, made an erroneous ruling, in deciding that 'the claimant had the right to open and conclude, and after-wards, when all the evidence was in, undertook to correct its error. In the ease at bar no claim was made by the defendants, before the evidence was concluded, for the opening and conclusion, and the plaintiff was compelled to undertake the burden of making out her case. After the plaintiff had carried the burden and all -the evidence had been submitted, it was too late for the defendants to then contend for the right to open 'and conclude, 'and the court erred in granting it to them.

2. "While agency may be proved by the testimony of the alleged 'agent as a witness, alt ciamnlolt be proved by his mere declarations either sploben or written. Such declarations ought not in >any evemit to be received in evidence, unless the party tendering the same offers in gotod faith, to supplement them by other aind independent evidence of agency; and if such offer is not m!ade good, the declarations ought to be excluded from ooreidemaltion by 'the jury. The safer and better practice, in all cases, is to require proof of the agency before admitting such declarations at all. The written statement of F. T. Abel to the effect 'that he had “the power of attorney” to execute the note given by the defendants should not have been admitted in evidence over the objection of the plaintiff, that “an agent cannot bind a principal by his statement that he is such agent,” defendants’ counsel not then stating that he expected to prove the agency by independent evidence; and after it was admitted, when it appeared that there was no evidence proving that F. T. Abel had authority from plaintiff to extend the maturity of the note, such statement ought to have been excluded from the jury’s consideration. As before stated, the better practice would have beeti. to have kept it from the jury until evidence of his authority to grant -the extension had first been introduced.

3. The action being upon a pi’omissory note, against Jarratt & Oo. and Mrs. Christian, and the defense of the former, who were principals, being that 'the time of payment had, foo.' a. Valuable consideration, been extended to a date beyond ‘that upon which the declaration was filed, for which reason the action was prematurely brought, and the defense of the latter being that she was a surety merely, and that because of such extension she was discharged, there was no error in charging the jury, in substance, that both defenses depended upon the establishment of the same fact, viz: that the extension had been granted as stated.

4. There was no error, in such case, in charging the jury that a finding for Jarratt & Co. would not result in ultimately relieving them from the payment of the debt, since sustaining their plea of abatement could not finally discharge them from liability. And we do not ‘think the charge justly ; subject to tilie eroticism Ithlait, it “suggested to tbe jury that ■Jarratt & Oo. were solvent and responsible financially for tbe payment of tbe note, and timt tbe release of -the surety would not injure payee.”

5. Tbe defendants’ contention, under tbe evidence being that tbe alleged extension bad been granted, not by tbe plaintiff in person, but by her agent E. T. Abel, and there .being no proof showing .any .agency for this purpose, or that ■the alleged agent had the slightest autbority to grant any extension at rail, the verdict for 'tbe defendants was totally .unsupported by tbe evidence and palpably wrong.

Jwdgmmt reversed.

All the Justices concurring.