Saunders & McMullian v. Hudson

Jenkins, P. J.

(After stating the foregoing facts.) 1. The following occurred on the trial: Counsel for defendants had been questioning Hudson, the plaintiff, asking him if he meant to intimate that one of the defendants, McMullian, had falsely claimed to have been sick, and finally Hudson appealed in an apologetic manner to the court for relief, the judge construing what he said as disclaiming any intention of reflecting upon Mr. McMullian, and remarking to counsel, “I think the explanation is satisfactory.” Defendants in their motion for new trial assign error upon this language of the court as being an expression of opinion upon the evidence, and an invasion of the province of the jury. We do not think, under the circumstances, that there was any harmful error in this remark of the court.

2. The plaintiff offered in evidence, and the court admitted, over objection, a letter dated September 25, 1919, written by the plaintiff and addressed to Saunders & McMullian, Grandridge, Florida. The following part of this letter was especially objected to: “After we left the latter’s office (Chestnut & O’Neal’s in Savannah) and before we boarded the train for home I asked Mr. Saunders if they would not return my money, and he unhesitatingly said they certainly would.” The objection urged to this portion of the letter was that J. T. Saunders was dead at the time of the trial. It appears that this letter was written by the plaintiff and addressed, not to Saunders, but to the defendant partnership, and mailed to its place of business at Grandriclge, Florida. It was admitted that J. T. Saunders was in life at the time the letter was written. The brief for the plaintiffs in error sets forth the following: “The evidence further disclosed that Saunders, the deceased member of the firm, resided in Seminole county, Georgia, and that the letter was not addressed to his post-office. There was no intimation that the deceased member ever received or saw the letter referred to.” Taking this statement as true, it does not follow that the letter could have been considered a transaction or communication had by the plaintiff solely with the deceased partner. We do not think that the court erred in admitting this letter, under the circumstances stated. See Civil Code (1910),’§ 5858 (»)•

3. Movants further complained of the following excerpt from the charge of the court: “The defendant, as the court understands, also admits that there was a rescission of the contract of sale, or rescission of the sale, and that they remained in possession of the property.” Movants complained that the excerpt was error for the reason that there had been no admission by the defendants that they remained in possession. Certain excerpts from the answer of the defendants clearly show that they did take possession of the property after the rescission of the sale. In one place they say: “After the rescission of said contract of purchase and sale, and after the plaintiff had been in possession of and managing said business, for a period of one week, the defendants took charge,” etc. Further they say: “When the defendants resumed control of said property and business,” etc. The language of the excerpt complained of was used in connection with what the judge was saying with reference to the rescission; at that point he was not talking about possession of the property prior to the time of the rescission. He was referring to admitted possession of the property by the defendants after the rescission. The excerpts from the evidence, cited by the plaintiff in error, tending to show that there was a dispute as to whether the plaintiffs or the defendants were in possession of the property, all relate to possession antedating the time of the rescission. We think it was admitted by the defendants that they were in possession of the property after the rescission; and, when properly applied, this language of the court implied nothing more than that the defendants were in possession after the rescission. That being true, we find no harmful error in this statement of the court.

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.