Thompson v. Duncan , 85 Ga. 542 ( 1890 )

Simmons, Justice.

"We think the court erred in not granting a new trial in this case upon the ground that the verdict was contrary to evidence and without evidence to support it. It seems to us, from the evidence sent up in this record, that .the jury should have sustained the first exception to the report of the auditor. After a full investigation by the auditor of the accounts of Thompson, all the money that was ever traced into his hands amounted to $821.72. The auditor charged him also with rent from the year 1872 to 1882 inclusive, to the amount of $255.40, making in the aggregate, for money received and for rent of the land, $1,077.12. This is all which the evidence shows Thompson to be liable for. It appears that one Ereeman had borrowed money from Thompson, and that the latter, at his death, held Freeman’s note, payable to him as guardian, for $1,003.90. The auditor charged this note also against Thompson, and the jury found that it was a proper charge, by finding against the first exception to the auditor’s report. Under the evidence in this record, we think the jury should have sustained this exception. The evidence fails entirely to show that Thompson ever received any money more than $821.72 and the rents. And to charge him with that amount, and also with the amount of Freeman’s note, seems to us, under the evidence, to be unjust. "We think it very likely that the money which Thompson received as guardian was loaned to Freeman, as he testifies that he commenced borrowing money from Thompson some ten years before the trial, paying ten per cent, interest thereon. Thus it seems that the auditor and the jmy charged Thompson twice for the same money. We think, therefore, that the court erred ,in not granting a new trial, because there is no evidence going to show that Thompson ever received any other money than $821.72 and the rents. If Thompson ever received any other money, it was the duty of the plaintiff to show it. Judgment reversed.