Davison & Co. v. Davis , 29 Ga. App. 422 ( 1923 )

Bell, J.

(After stating the foregoing facts.)

1. The court charged the jury as follows: “ The law says a witness can he impeached, first, by disproving the facts testified to by the witness. The law also says a witness can be impeached in the second place by proof of contradictory statements previously made by the witness relevant to his testimony and to the case. As to whether or not any witness in this case, either for the plaintiff or the defendant, has been successfully impeached is exclusively a question of fact for your determination.” This charge is excepted to on the ground that there was no evidence to authorize a charge upon the impeachment of witnesses because 'of contradictory statements previously made, and also upon the ground that the court did not go further and instruct the jury that a witness when impeached may be restored to credit by proof of facts consistent with his testimony', or by other facts and circumstances in the case sufficient to satisfy the jury that the witness spoke the truth. The witness Croff Davis testified: “ And when I paid him, I asked for my papers, and he was busy with his automobile, and said he was going down to the Drake place to see about some cotton; and he said, ‘You can get it at any time.’ And he said, ‘You do not owe us anything at all now. Go ahead, I will give it to you any timed Yes, sir, I am talking about this note he is now suing me on.” The defendant was here referring to C. J. Davison.' This evidence was contradictory to some of the evidence which was given by Davison while testifying in behalf of plaintiff, and was sufficient evidence upon which to base the charge; and in the absence of a written request it was not error for the court to fail to amplify the same.

2. The motion for a new trial severally assigns error also upon the following instructions: “ The defendant contends he did not agree to pay the obligations of Ella Lawson and Dave Tucker. I charge you, in order to make binding the promise of another to answer for the debt, default or miscarriage of another, the promise to do so must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized.” “ I charge you section of the Code 4362: ‘All actions upon open account or for the breach of any contract [not] under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action accrues/ ” “ In reaching a conclusion as to the Dave Tucker and Ella Lawson accounts — if you reach the conclusion from the evidence in this case that the defendant has not agreed in writing to pay same, then I charge you in that event those obligations are barred by the statute of limitations and are not legal demands on the defendant/' We think that each of these charges was error. They could refer only to the accounts of Ella Lawson and Dave Tucker, and if these accounts were paid, neither the statute of frauds nor the statute of limitations had any reference thereto. If these were included by the parties within the note which was sued upon, the statute of frauds was unquestionably complied with and the statute of limitations was not involved. If they were not included in the note, then they were not a part of the sum which was sued for, whether paid or not. The only issue which we are able to discern from the record with reference to these items is, whether they were merged in the note, and, if so, whether they had been paid. There were no issues upon which any of the instructions above quoted could have been properly given. They were unsupported by any evidence, and we are of the opinion that they were prejudicial.

3. Another ground of the motion excepts to the charge of the court by which the question was submitted to the jury as to whether the accounts of Ella Lawson and Dave Tucker had been paid or not, in full or in part, on the ground that there was no dispute of the fact that the accounts had not been paid. Exception is also made upon a charge by which the court submitted it to the jury to determine whether the receipts, which were held by the defendant included all, or only a part, of the indebtedness sued for, on the ground that the evidence showed indisputably that the receipts did not refer to or include certain specified items, and also upon the ground that the court did not charge in the same connection that the receipts were subject to explanation by the plaintiff. There were sufficient issues to support these instructions, and the court was not obliged, without a written request so to do, to instruct the jury' that receipts are subject to explanation. The only other special ground of the motion is expressly abandoned.

There was some evidence to authorize the verdict, and the judgment overruling the motion for a new trial is reversed solely because of the errors pointed out in the second division of this opinion.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.