Blount v. Bowne , 82 Ga. 346 ( 1889 )

Bleckley, Chief Justice.

1. The scene of this action was Decatur superior court; the scene of the cause of action was Fulton superior court. The latter, as a court of equity, had possession, by its receiver, of certain goods, consisting of tobacco, snuff and cigars, valued at from eight to ten thousand dollars, which had been seized at the suit of Walter et al. against Gillett Brothers. Of these goods Blount desired to obtain possession; to do which it became necessary for him to execute a bond with sureties. He employed Bowne to become one of the sureties, which he did; and for the agreed compensation this action was brought. Upon the trial the parties differed upon two questions of fact; (1) as to the terms of the contract, and (2) as to whether á full execution of it had been realized. There was no difference as to the amount of compensation, but Blount contended that the terms of the contract embraced not only the execution of the. bond, but a sale of the goods which was subsequently to be made by Bowne; whereas Bowne contended (and such was the overwhelming weight of the evidence) that the compensation was solely for executing the bond, and that he assumed no duty or obligation whatever touching the selling of the goods. The chief pressure of the case was upon the question whether Blount obtained the possess'on of the goods on the bond which Bowne and others executed with him, or whether that bond proved fruitless, so as not to subserve the purpose which both parties had in contemplation. Bowne and the receiver both testified that Blount did obtain possession under the bond. One of the attorneys concerned in the transaction testified that such was also his recollection. Blount alone testified to the contrary, and even he admitted that after the bond was accepted he insured the goods in the name of Bowne, and that Bowne “ was not liable for the goods more than about an hour.” This implies that he was liable for them during that length of time. How liable for them? Upon the bond, of course, for there is no pretence or suggestion that he became liable for them in any other way. The explanation is, that after the receiver’s custody ceased and Blount’s commenced, the goods were seized under fresh process at the instance of a new plaintiff’ or claimant. This is apparent from the evidence. It was this fresh seizure which caused .the subsequent detention of the goods, and led to the compromise by which Blount not only got possession a second time, but obtained a final release both for herself and his sureties upon the bond. The seizure was not the fault of Bowne, but the misfortune of Blount. Bowne did all he undertook to do, and thus became entitled to the agreed compensation. The letter of Blount, written after the whole business was concluded, is a manifest recognition of Bowne’s right to be compensated, and the only measure of compensation of which the evidence affords any glimpse is that fixed by the contract. Considering the date of this letter, the explanation which Blount attempts to give of it is too feeble to bear criticism. The evidence warranted the verdict.

2. The charge of the court and the refusal to charge (taken in the light of the whole charge as given) complained of in the motion for a new trial, we consider .free from substantial error. At all events, as the verdict is correct, there is no cause for reversal.

3. The ground of objection taken to the admission of certain evidence as to the bond and its acceptance and approval by the superior court of Fulton, namely, that the bond itself with its acceptance and approval would be the highest evidence, is not sustainable. The bond became an office paper of the court which accepted and approved it, and a certified copy or exemplification of such a document, and not the document itself, is declared by the code to be the primary evidence. Code, §§3816, 3817. Had this ground of objection been presented to the parol evidence instead of the one which was presented, possibly it should have been, and perhaps it would have been, sustained. But even then, as the action was not upon the bond, but the instrument was only collaterally in question, it is not certain that an exemplification would have been necessary. 1 Taylor’s Ev. §405 to §408; 1 Gr. Ev. §89. However this may be, the objection on which the court adjudicated was correctly decided. Our review of the question ought to be and is confined to that objection. Thomp. on Trials, §693.

Judgment affirmed.