Carter & Martin v. Carter , 7 Ga. App. 216 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

Under the undisputed evidence, it is clear that the plaintiff failed to show any right of recoverjq except as to the $1,100. The two debts of $128.10 and $109.40 which the defendant paid for the firm of Carter & Martin, although they may have been the individual debts of H. O. Carter, were nevertheless included in the list of the debts of the firm which H. C. Carter, for the firm, had made out and delivered to the defendant, to be paid by him out of the purchase-price of the turpentine business. The defendant having been thus authoritatively informed by H. C. Carter that these debts were firm debts, and having no reason to believe otherwise, in good faith paid them according to his agreement with the firm; and the amount so paid by him for the firm can not, in law or equity, be recovered from him by the firm or either member thereof. The evidence of Martin and J. W. Carter relating to the $1,100 which the latter paid himself from the purchase-price of the turpentine business is in conflict. If the statement of Martin is the truth of the transaction, then the $1,100 was the individual debt of H. C. Carter, and so known to the defendant, and he was not authorized to pay it with money which he owed the firm of Carter & Martin. Although the plaintiff had introduced the defendant as a witness, he was not bound by his testimony. While a party can not impeach his own witness, he may nevertheless contradict his testimony and show that the facts are different. Civil Code, §5290; Skipper v. State, 59 Ga. 63 (3); Christian v. Macon Railway &c. Co., 120 Ga. 317 (47 S. E. 923). While íl. C. Carter agreed that the defendant might apply the firm’s money to the payment of his individual debt, this would not bind the firm or J. W. Martin, unless the latter had also consented to such payment. It is well settled that an individual debt due by one partner can not be set off against a claim due the firm. Civil Code, §3747; Harlow v. Rosser, 28 Ga. 219 (4); Wise v. Copley, 36 Ga. 508; Bank of LaGrange v. Cotter, 101 Ga. 134 (28 S. E. 644). If the defendant had agreed to hold Martin harmless as against the note to the bank which was given by H. C. Carter and J. W. Martin to pay the individual debt of the former, then when Martin paid this note he had the right to reimburse himself by collecting and retaining the proceeds of the Stewart note; and by so doing he did not incur any liability to J. W. Carter. The question as to what was the truth in regard to this $1,100 transaction should have been submitted to the jury, and for this reason the grant of a nonsuit was erroneous.

Judgment reversed.,