Napier v. Jones

Montgomery, Judge.

This case was an attempt by the plaintiffs in error to hold the defendant in error liable as guardian of the wife of Napier for mismanagement of his ward’s estate.

1. The guardian’s accounts were long and complicated, running through a series of years, embracing the whole period of the war. The waste charged was that he had mixed his ward’s funds with his own; that he had credited himself with Confederate money paid during the war, to make the credit side of his account balance the debt side, for which he was liable in gold; that he sold a couple of negroes for $1,500, for one-third of which he was liable to complainant’s wife, and had failed to account for them, and that after the war he had turned over to complainants between $4,000 and $5,000 in Confederate notes and securities to balance his accounts as guardian, it appearing from his books that there were that many dollars due by him to the ward. The evidence being that his ward’s funds had run into that kind of currency during the war. It appeared from the evidence that he had sold the negroes at private sale, on credit, and the purchaser being unable to pay for them, he had taken them back, and they were lost by emancipation.

The case was submitted to the jury without the accounts ever having been referred to an auditor, and without instructions asked for, or given to the jury, as to what rules they were to be guided by in allowing the disbursements of the guardian, none of the items of which were specifically surcharged and falsified. The Court charged the jury correctly as to the liability of the guardian for mixing the funds of his ward with his own, and the jury returned a verdict for $2,000 for complainants, not indicating by what process they arrived at this result. Complainants moved for a new trial, because the verdict was for too small an amount, on various grounds, among them because the verdict was contrary to the evidence and the principles of justice and equity, and the charge of the Court. There was no allegation that the verdict was contrary to law, though there was much argument by counsel going to show that the verdict was contrary to law, in that “ defendant never having made any investments of his ward’s money, he is liable for the amounts received by him as guardian, with interest upon the same from the time of its reception, at whatever the money was worth at the time he received it, deducting the legitimate disbursements made by Kim.” And counsel presented a calculation purporting to show how the jury should have arrived at a verdict for a much larger amount. It is only necessary to notice a single error in the calculations of counsel to show that if the jury have made any errors, they might have fallen into graver ones had they adopted those calculations. Counsel for complainants charge the defendant with having received in gold, on July 1st, 1856, the sum of $12,000. The proof shows that he then received a bond of one Scarlet, on which that amount was running to maturity, and that he afterwards received in payment on said bond $4,200 in Confederate money. This Court has frequently decided that if received when ordinarily prudent men took the money in their business transactions, he could not be held liable for its depreciation or loss.

There was no evidence submitted to the jury as to the value of Confederate money at the various dates of the disbursements by the guardian. In view of the manner in which the whole case was thus left to the jury, without chart or compass to guide them through this labarynth of accounts running through a series of years, with the currency ever fluctuating and varying, this Court will not undertake to say that their finding was contrary to the evidence or the principles of justice and equity, or the charge of the Court. Nor will the Court grant a new trial on the ground that the verdict is contrary to law, no such assignment of error appearing in the record.

2. And, under the facts stated, the jury will be allowed a liberal discretion in adjusting the equities between the parties, as provided for by the Ordinance of 1865; nor will the Court scan too critically the result at which they arrive, no bad faith appearing on the part of the guardian.

3. Counsel for complainants also insisted that the jury should have charged the guardian with compound interest after six years, and annually thereafter. Here the rule of adjustment insisted on by the counsel would again have led the jury into error, as the law authorizing such a charge was suspended during the war by Act of December 6th, 1862, which took precedence of the Code by Act of December 13th, 1862.

4. Counsel for complainants again say, and so charge in their calculation, that the complainants were entitled to $500 in gold for their share of the negroes sold, and interest thereon from January 1st, 1860, and contend that the guardian’s return to the Ordinary was conclusive against him as to this sale of the negroes. We think not. The returns of a guardian, made in good faith, (and there is no evidence of bad faith here) are only prima facie evidence against him, and may be explained by parol evidence. In the charge upon this point the Court erred, but in favor of complaints.

5. The remaining errors complained of, conceding them to be such, are immaterial, and could not have influenced the verdict.

Judgment affirmed.