Scott v. Scott , 36 Ga. 484 ( 1867 )

Warner, C. J.

The error assigned to the judgment of the Court below in this case, is, in refusing the motion for a new trial upon the grounds specified therein. The complainant alleges that he was the confidential clerk of Scott & Jones, having the management of their mercantile business, and being authorized by them to wind up and settle the same, to collect the assets due to the firm, and to pay out of such assets the debts due by the firm — that as such confidential clerk, he paid out of his individual funds for the debts due by the firm of Scott & Jones, the sum of eighteen hundred and forty-two dollars and fifty-five cents, over and above the firm assets which were in his hands. Samuel Scott, one of the partners, was the brother of the complainant, and Jones, the other partner, was his brother-in-law. Samuel Scott, one of the partners, is now dead; but the complainant alleges, that before his death, he exhibited to him a true account of his receipts and disbursements on account of the copartnership business, which was admitted to have been correct, and that the partners, Scott & Jones, were indebted to him the sum of money before stated. Samuel Scott, in his lifetime, as the complainant alleges, reimbursed him for the money advanced for the firm by payments made at different times, but instead of giving receipts ■ therefor he gave his notes, at the request of his brother, to enable him to have a settlement with Jones, the other partner; the notes thus given by the complainant were made payable to Samuel Scott, and since his death, suit has been instituted thereon by his administratrix against the complainant, who filed his bill to enjoin the collection thereof, alleging in substance the foregoing facts. On the trial of the cause, the main question involved, was, whether the firm of Scott & Jones was in fact indebted to the complainant as alleged for the payment of their debts out of his individual funds. To make out his case, the complainant offered in evidence certain notes made by Scott & Jones, payable to Gould, Bulkley & Co., Force, Conley '& Co., which were in his possession, and receipts for money paid by complainant to various persons for Scott & Jones, which are set forth in the record. The admission of these papers in evidence was objected to by defendant, and the objection sustained by the Court. In view of the facts of this case, we think these notes and receipts were admissible in evidence. It is true, the fact that he has the papers in his possession, is not conclusive evidence that he paid them off with his own money, but it is a circumstance in his favor, which may be strengthened and supported by other evidence in the case. We think it was competent evidence to be submiteed to the jury.

Although we should not have reversed the judgment on this ground alone, had we been entirely satisfied with the verdict rendered in this case, but in looking through the record, we are not satisfied' that justice has been done to the complainant. As there will be another trial in the cause, we will forbear expressing any opinion upon the facts involved in it.

Let the judgment of the Court below be reversed, and a new trial granted.