Bigelow v. Young , 30 Ga. 121 ( 1860 )

By the Oourt.

Stephens, J.,

delivering the opinion.

1. We think the Court erred in allowing parol evidence of the contents of the writing, about which Yernon and Hall testified, to go to the jury. If we make the assumption on which Mrs. Young’s whole case rests, that this paper is a different one from those produced in Court by Bigelow under notice, then there was not the slightest proof that the paper ever was executed. On the other hand, if the paper was not a different one, then it was not lost, but was in Court, and ought to have been allowed to speak for itself, to the exclusion of all parol evidence touching its contents. On either hypothesis, the parol proof of the contents was improperly admitted ; for before that proof was allowed to go to the jury, there ought to have been satisfactory preliminary proof to the Court that the paper had been executed and was lost. In point of fact, we think that the preliminary proof, so far from showing that the paper had been lost, shows that it was in Court. The written contract, about which Yernon and Hall testified, was no doubt, the very same which Bigelow produced, consisting of the two contemporaneous papers, bearing date the 17th January, 1852. The execution of these two papers was proven by the subscribing witness to them, so clearly, that it was not even contested by Mrs. Young. Now, it is a curious, if not incredible thing, that the parties should have executed a different and inconsistent writing, to be an exponent of the same contract. The very satisfactory conclusion to which our minds are brought by the whole preliminary proof is, that the parties did no such inconsistent things, and the written contract about which Vernon and Hall testified, was the same which Bigelow produced in Court. The variance between the contents of the two papers of the 17th January, 1852, and the contents about which the witnesses testified, is a variance which does not so much prove the existence of a different paper, as it illustates the importance of the general rule, that the writing must speak for itself

2. We think there was error in admitting the evidence touching the negro hire, for the evidence showed that more than four years had elapsed after the negro hire was due, and before the tender was made for the redemption of the pledged negro, and so that item in Mrs. Young’s account was barred by the Statute of Limitations.

3. We do not think there was error in allowing the witness to be sworn after the evidence had been announced as closed on both sides, and there had been some progress made in the argument. The ends of justice are much better promoted by liberality than stringency in matters of practice, and we see no reason for pronouncing that the Judge abused his discretionary powers in this case.

4. Another assignment of error is made upon the Judge’s having allowed a witness to be recalled and to restate a point in his testimony about which counsel differed in their recollection. This is a dangerous practice, and, we think, should be allowed, if at all, with much caution. For myself, I have no hesitation in saying, that it ought never to be allowed with a witness whose fairness lies under any ground of suspicion. An unfair witness will be sure to make his second statement more favorable than his first one was, to that side he leans towards, after the dispute in his presence has shown him how he can mend it. With these remarks on the general rule in such cases, we pass from the point without deciding whether there was error in regard to it in this case or not, for such a decision could settle no principle, and the same question cannot recur on the next trial in the same light in which it is now presented.

5. We think there was error in rejecting the evidence to show that Mr. Young had only a life-estate in the negro. Trover is an action for damages done to the right of possession, and the amount of the damage obviously depends upon the extent of the right. It needs no argument to prove that one suffers less damage in losing only a life-estate than in losing the fee simple. We think, therefore, the evidence ought to have been admitted in reduction of damages. But it was said in the argument, that the negro was pledged by Mrs. Young, as executrix of Griffin Young, deceased, to whose estate the negro belonged, and that she had the right, therefore, to recover the full value of the negro, without regard to the limited nature of her personal interest in him, in order that she might account to the remainder-men for their interest in him. The answer to this is, that she had no right to pledge the negro, and that the very act of pledging at all constituted an assent to the legacy, and from that time the life-estate was hers, and the remainder was complete in the remainder-men. She, therefore, was entitled to recover only her own interest in the negro, while the remainder-men had to look after their own.

6. We think the charge given-in this case was erroneous. Whatever may have been the written contract -of the parties, they certainly had the power to vary it by subsequent agreement, written or verbal. The charge was given in reference to evidence which we hold to have been improperly admitted and which will not be received on the next trial. We shall, therefore, only say that we think the proper charge in the case would be founded solely upon the contract as evidenced by the papers which Bigelow produced, and that under these Mrs. Young is entitled to have the negro returned to her, when she pays Bigelow all that she may owe him at the time when the redemption takes place, but not till then.

7. These principles, applied to the evidence in this ease, lead necessarily to the conclusion that the non-suit ought to have been awarded as asked. The evidence shows that Mrs. Young owed Bigelow more than seven hundred dollars when she demanded the negro, and that she tendered him only $246 37. She had no right to reclaim the negro without tendering all she owed.

Judgment reversed.