National Bank v. Bones

Blandkokd, Justice.

The plaintiffs in error, who had become the owners of the property of the Stonewall Iron Works, situated in Cherokee county, Alabama, on the 20th November, 1880, conveyed the same to J. T. Newberry, as trustee, with power to sell for cash or on credit, at public or private sale, any or all of the lands and personal property, to collect all rents that might be due and owing, and to distribute the money among the beneficiaries, according to their respective interests in the property, etc. This deed was duly executed and recorded in the state of Alabama.

On the 10th of March, 1881, William E. Jackson, Jr., submitted a proposition in writing to said Newberry, trustee, to lease the property, furnace, machinery, etc., and all buildings thereon, for two years, at the rate of thirty-six hundred dollars per annum, payable quarterly; possession to be given immediately; any rent charge to commence April 1 st next; . . . the rent to be paid on condition that the running of the furnace made a sufficient net profit to warrant him in so doing; he to be allowed to charge one hundred dollars per month for compensation, to be included in the expense accounts before arriving at net profit; if the net profit was more than the rent, the overplus was to go to him ; if less, the rent was to be rebated to that amount. There was to be furnished not more than twenty-five thousand dollars at the rate of seven per cent interest per annum. If the business should turn out unprofitable, he was to-be saved harmless from any balance that might be due of said twenty-five thousand dollars. This is, in substance, the proposition submitted by said Jackson, Jr.

On the same day, a meeting of the owners of the property was held, and the proposition was accepted in writing, and J. T. Newberry was directed to lease the property on the terms proposed, and upon condition that the property was not to be encumbered to a greater amount than twenty-five thousand dollars, and that no personal liability whatever was to attach to the owners of the properly beyond or to a greater extent than the property specified.' William E. Jackson, Jr., went immediately into possession of the property, and he was furnished the said sum of twenty-five thousand dollars. While in possession, the defendant in error furnished Jackson, Jr., with the corn sued for in this action, for which said Jackson had given his acceptance in writing, signed William E. Jackson, lessee. William E. Jackson, one of the owners of the property, having died, his executors were sued with the other owners.

The plaintiff below offered William E. Jackson, Jr., as a witness to prove that the lease had been rescinded, and that the owners had appointed him as agent to continue to run the Stonewall Iron Works for them, and that while he ran the works as such agent, the corn sued for was purchased from Bones & Co. for the benefit.and use of the owners, and that he did not disclose his agency.

The plaintiffs in error objected to the competency of this witness, because W. E. Jackson, one of the parties to the contract, and whose executors are sued in this action, is dead.

The court overruled this objection, and allowed said William E. Jackson, Jr., to testify, and this is the first error complained of, and we will here notice it.

1. We do not think that this witness was competent to testify in this case, under §3854 of the Code, because he fell within the first exception to that section. “ Where one of the parties to the contract or cause of action in issue or on trial is dead, the other party shall not be permitted to testify in his own favor.” The issue in the case was, whether the contract of lease between the plaintiffs in error had been rescinded, and whether the debt sued on by Bones was made by W. E. Jackson, Jr., individually or as agent for plaintiffs in error. ■ These are the main issues on trial, and W. E. Jackson’s representatives are parties thereto; W. E. Jackson, Jr., is also a party to these issues, and he is directly interested in the same, so as to relieve himself from liability and to place it upon the plaintiffs in error. He would not be a competent witness at common law, and he is not relieved by the evidence act of 1866, as he falls within the first exceptions to that act. Daniel vs. Burts, 72 Ga., 143. This case differs from 64 Ga., 236.

2. The court held, and so charged the jury, that the contract which the trustee, Newberry, made with W. E. Jackson, Jr., as authorized by the owners, did not make him a lessee of the property. In this we think the court was wrong. The property was let to him almost upon the precise terms on which he proposed to lease the same, for two years. The fact that they were to advance the lessee twenty-five thousand dollars, and not exact rent from him if the net proceeds of the property were not sufficient for that purpose, did not make the letting anything but a lease; it did not constitute the lessors and lessees partners, nor the transaction a partnership, nor did it make the, lessee an agent for the lessors. The lessors, under the contract with the lessee, were not in any manner whatever personally liable for any debt contracted by him.

3. There were many requests made to the court to charge the jury by the plaintiffs in error, eight in all, which were refused by the court. We are of opinion that they should all have been given, except the third request, which was that a written contract of lease cannot be rescinded verbally without a change of possession, or without a writing dispensing with the same, signed 'by the lessors. This request might have been proper under the requisite qualifications.

4. The evidence in the case did not authorize the verdict, even if the testimony of William E. Jackson, Jr., had been properly admitted, because he does not show that the lessors consented to or ever agreed that he might surrender the lease; nor does he show how he became their agent. Two or three of the owners, not a majority of them, could not make him an agent for the rest; indeed, they, the owners, owning this property in common, but each owning a particular interest, would not be bound by the act of any of the owners appointing W. E. Jackson, Jr., agent without their consent.

So we think the court erred in his several rulings as indicated, and that a new trial should be had.

Judgment reversed.