McLendon v. Wilson, Callaway & Co. , 57 Ga. 438 ( 1876 )

Warnrr, Chief Justice.

The plaintiffs brought their action against the defendant on two drafts, dated 31st of August, 1867, for $3,819 24, each, one due at ninety days, and the other at sixty days, drawn by defendant on plaintiffs, payable to their order, acceptance waived. To this action the defendant pleaded several pleas, as set forth in the record, in one of which the defendant alleged that the plaintiffs were indebted to him the sum of $1,750 00, for usurious interest received. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiffs for the sum of $4,370 57 — reducing the amount claimed to be due on the two drafts $3,267 91. The defendant made a motion for a new trial, on the various grounds therein set forth, which was overruled by the court, and the defendant excepted.

It appears from the evidence in the record, that the two drafts sued on were given in liquidation of an account held by the plaintiffs against the defendant, and one of the main questions on the trial, was whether, at the time the drafts were signed, the defendant insisted that the amount of the account was wrong, and that plaintiffs agreed that if there was anything wrong in the account it should be corrected, and, upon that representation, the defendant signed the drafts. The evidence upon this point in the case was conflicting.

1. There was no error in admitting the answer of Wilson in evidence, that the account for which the drafts were given was a true extract from the books of the plaintiffs. The items of the account were stated in the abstract, and it was for the account thus stated that the drafts were given, and not for the items on the books of plaintiffs, unless the abstract and the books Contained the same items, as stated'by the witness. If the defendant had desired to have seen the plaintiffs’ books, for the purpose of verifying the items in the abstract, before giving the drafts, he could have done so, or have relied on the abstract as he did do, and for which the witness stated the drafts were given.

2. There was no error in allowing the witness, Wilson, to testify that the giving of the drafts was in full settlement of all matters^ between plaintiffs and defendant, and was satisfactory to all parties, so far as he knew or believed, the court rejecting the word “believed,” so as to make the testimony read so far as he knew; especially was this testimony admissible, in view of and in reply to the evidence of the defendant.

3. There was no error in allowing the witness, Wilson, to give his reasons why acceptance of the drafts was waived, or his other testimony, objected to by the defendant, as contained in the bill of exceptions, in view of and in reply to the testimony of the defendant in relation to the transactions between the parties.

4. There was no error in ruling out the testimony of Johnson, as to what the defendant told him shortly after the drafts were executed, in the absence of the plaintiffs, that he did not ntend to pay them, etc. A party cannot manufacture evidence for himself in that way.

5. When this case was before this court on a former occasion, and which is reported in the 52d volume of Georgia Reports, 41, a new trial was ordered for error in the charge of the court, in excluding from the consideration of the jury the evidence of the defendant as to the intention and understanding of the parties, that the amount which he claimed to be erroneous, for which the drafts were given, should thereafter be corrected. In looking through the charge of the court at the last trial of the case, in view of the rulings of this court, the questions in issue between the parties, including the question as to the bar of the statute, as to the claim for usury, were fairly submitted to the jury, under tlie law applicable thereto, and there was no error in the charge of the court as given, or in the refusal to charge as requested. There is sufficient evidence in the record to sustain the verdict, although that evidence was conflicting. The credibility of the witnesses, and the weight to which their testimony was entitled, was a question for the jury exclusively, and not a question for this court to decide. Whilst we have no power to compel parties to be satisfied with the verdict of a jury of their neighbors, upon questions of fact, when there is conflicting evidence as to their rights, and no rule of law violated by,the court, still we have the power to compel them to acquiesce in such verdicts, and not disturb the country with any further litigation, as we now do, by affirming the judgment of the court below in this case, in overruling the defendant’s motion for a new trial.

Judgment affirmed.