Blount v. Beall , 95 Ga. 182 ( 1894 )

Atkinson, Justice.

' The facts necessary to an .understanding of this case appear in the official report.

1. Motions to continue are addressed to and are generally within the sound legal discretion of the court. The exercise of proper diligence by suing out the interrogatories of this witness,or by taking her depositions — it appearing that she was a resident of the city of Atlanta,— would have secured her testimony so that it could have been used upon- the trial of this case. If, therefore, the defendant had availed himself of the means afforded by the law to procure the testimony desired, it would not have been necessary to have presented this motion to continue. The motion"itself does not appear to have been wholly without merit, and this courtis not prepared to say what would have been its decision with respect thereto if called upon as an original proposition to rule thereon. The exercise of this discretion, however, is one of the functions of the trial court; and inasmuch as this court is not prepared to say from the record that the trial judge committed an error .of law in refusing to continue the case, it will not undertake to control his discretion.

2. The plaintiff was the bailor of the property for the value of which she brought this suit. The bailee was dead. Upon the trial the daughter of the bailor was offered as a witness to prove the bailment and certain negotiations thereafter between the bailor and bailee looking toward the restitution of the thing bailed. It appeared that the witness lived with her mother, the bailor, and was dependent upon her for a support. Objection was made to the competency of this witness under the act of October 29th, 1889, to testify as to any transactions with the deceased party. We do not think this objection was well founded. This witness was no party to the record — was in no sense interested in the result of the litigation. She does not come within either of the classes of persons who by the terms of said act as witnesses are proscribed. Whatever personal interest she might have felt in the result of her mother’s suit, she had no such legal interest in the thing in controversy as disqualified her as a witness.

3. The duty of administering the proper correctives to contumacious, refractory and loquacious witnesses devolves upon the judges of the trial courts. These courts can best judge what is the proper corrective to apply in a given case. This court will not undertake to control or give direction to the trial courts, unless, in the exercise of their discretion with respect thereto, manifest injustice has been done to the party complaining.

4. Dui’ing the progress of the case a witness testified that her uncle, the defendant’s intestate, was well off, and that he left considerable property. This testimony was not objected to at the time, but the defendant afterwards moved to rule it out on the ground that it was not competent to prove the means or wealth of the deceased. The court ruled that this could not be done, inasmuch as the testimony had come in without objection. While the plaintiff was being examined, her counsel proposed to show by her what the means or financial condition of the deceased was, and the defendant objected upon the ground that such testimony was incompetent; whereupon the court, in so ruling, remarked that there was some evidence in on that subject already without objection. Defendant’s counsel then moved to rule it out, and the court remarked, “ Too.late. The mill will never grind with the water that has passed.” A motion to rule out testimony illegally admitted even without objection is never too late until the cause is finally submitted to the jury. If the testimony is illegal, it should not be considei’ed by the jury, and if it is not to be considered by the jury, it should not be admitted for their consideration. The admission of illegal testimony at the instance of one party does not justify the admission of illegal testimony at the instance of the other. The law recognizes no such thing as an equation of errors, and the true remedy is, when an error is committed, to correct that by doing what is right, and not seek to excuse it by the commission of another error. The motion of the defendant was in time; and while we do not approve the language of the trial judge in refusing to rule out the evidence, or the reason assigned by him for this refusal, we think he committed no error of law. We think the testimony was relevant. It was contended by the defendant, that for many years this plaintiff and her daughter had been to a great extent dependent, upon the bounty of the deceased for their livelihood; that he furnished them with board and lodging equal in every respect to that of his own family, and for this the defendant, the deceased’s administrator, claimed a set-off', alleging that such support of the mother and her daughter was reasonably worth three hundred and fifty dollars. The deceased was a gentleman of high character, prosperous and successful in his chosen profession; and this evidence was admissible to show, at least inferentially, to the jury that it was not probable that a man of his wealth and respectable connections would compel his sister and her dependent daughter to pay him for their support. It was such a circumstance as they were entitled to have submitted to the jury, its weight to be determined by them; and we think the court committed no error, either in admitting the testimony in the first instance, or in the second, in declining to rule it out.

5-7. We will now consider the plea of the statute of limitations, and therewith, a motion for a nonsuit made by the defendant at the conclusion of the plaintiff’s case, the motion being based upon the ground that it appeared that the plaintiff’s cause of action was barred by that statute. It appears, that in the year 1879 the plaintiff borrowed from the defendant’s intestate the sum of one hundred dollars, and delivered in pledge to the latter the ring for the value of which she brought this suit; that in December, 1879, she repaid the money borrowed and demanded the restitution of the ring pledged; that the deceased did not deliver to her the ring, alleging as a reason that he had left it at his office, and when she applied there for it afterwards, deceased stated that he had mislaid the ring, but would find it and restore it; that she made repeated demands for the restitution of the ring, and was always met by the statement of her brother that as soon as he could find it he would restore it to her; that these occasional demands and promises of restitution were continued from time to time until 1890, when the deceased informed the plaintiff that it would be impossible for him to make -restitution of the ring, that he had sought diligently for it and had been unable to find it, but that he would pay her five hundred dollars therefor. It was insisted by the defendant’s counsel, that the first demand and failure to restore the property was such a refusal to make restitution as amounted to a conversion of the property, and that the right to recover the value of the property delivered in pledge was therefore bai’red by the statute of limitations; and that inasmuch as the plaintiff’s cause of action was so barred, the express promise to pay could amount to nothing more than an oral promise to pay a debt which was barred by the statute of limitations. We do not think this contention is well founded. We do not think that the pledgor was bound to treat a mere failure to deliver upon demand as a conversion of the property pledged. She might have done so, or she might have relied upon the repeated promises of the bailee to make restitution — he at no time claiming any interest in the thing bailed, — and thus a continuing bailment existed up to the time of an actual adverse holding or claim by the deceased. It has been adjudged by respectable authority that the statute of limitations does not run in favor of a bailee until he sets up an adverse claim in respect of the bailment. See Marr, administrator, v. Edward Kubel, Mackey’s Reports, vol. 4, page 577, Reizenstein v. Marquardt, Lawyers’ Reports Annotated, book 1, page 318, and cases cited in the note thereto.. The evidence showed that there was never an adverse claim set up by this bailee until 1890, and then he set up no claim adverse to the right of the plaintiff, but, admitting his liability, promised to pay her the sum of five hundred dollars, presumably as liquidated damages for the failure to restore it. Immediately upon his refusal to deliver the property, or upon his final admission of inability to make restitution, she would have been entitled to bring an action as for a conversion. There was a bona fide subsisting obligation upon his part to pay to her the value of the thing bailed,and that obligation was the consideration of the promise sued upon in this ease. This suit was brought within the period limited by law, within four years from the date the promise was made. Therefore it was within the statute. The court properly-overruled the motion to nonsuit.

Upon a careful review of the testimony in the case, we are fully persuaded that the plaintiff proved her cause of action and established her right to recover. The verdict of the jury is in accord with the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.