Hanson v. Crawley

Trippe, Judge. 1. A defendant has not the right to ask the court to direct the jury to give him a verdict on the conclusion of plaintiff’s evidence, because the plaintiff has not made out his case. - He may move for a non-suit, which a court might properly grant, or the defendant could go .on to the jury with the evidence already before them, and claim that he is entitled to a verdict on the ground that no case is made out against him. But -the court will not, on motion, summarily order a verdict for defendant. A motion for a non-suit at that stage of the trial is the proper way to raise the question before the court, whether there is sufficient evidence to authorize or sustain a verdict. 2. But even if,.in a given case, it were proper for the court to grant such a motion, or if a motion for a non-suit was made and rejected when it should have been allowed, and the defendant, not relying upon his rights as then existing, but, after .his motion is overruled, proceeds, and both he and the plaintiff introduce further testimony, a verdict for the plaintiff, if sustained by the whole evidence, will not be set aside because of the refusal of such motion by the court. If the case is for the defendant when the motion is made, he should rely upon it as it stands. If testimony introduced afterwards authorizes a recovery by plaintiff, the verdict will be good. It is not vitiated by the rejection of the motion, nor is the subsequent proof thereby rendered illegal. A new trial will not be granted because of an error which has been condoned or rendered harmless, and which could not possibly have affected the merits of the case or the verdict. 3. The defendant put in evidence what the principal (Mor [534] rison,) said to the payee when the words were added to the note which are complained of. This was done for the purpose of showing that Morrison was only to be bound by the additional obligation, and therefrom an inference was to be drawn that Hanson was not a party tó the- change, nor to be affected by it; and, further, that by the understanding between Morrison and Crawley, he was not a party to or cognizant of the original contract for the payment of gold. If there was anything in the conversation that was stated by Morrison, and which was contradictory of such a construction, then Crawley was entitled to have it proved. The general, rule is, that where one^side proves a part of a conversation, the other has the right to have all of it given in It may be said to be a part of the res gestee. If such proof is admissible for a particular purpose, the court should be requested to put a proper limitation on it as to how far and for what purposes it may be considered by the jury. 4. This case has been before this court heretofore, and is reported in 41 Georgia, 303. The principle is therein recognized that the addition to a contract of what was a part of it as agreed on, and which -was left out by mistake, was not such a change as would release the security. Judge McCay, in that opinion, states it thus: “ Had the fact been that the original contract was a specie contract, and tl\e security knew it, and became security with that understanding, the mere fact that under a mistake of the law they left certain words out of the contract, which were afterwards put in by the principal, would not release the surety.” .That was the main question before the jury. Did the surety know it was a gold contract ? There is no dispute that it was in fact to be paid in gold. The surety testified that he did not know it was for gold. The payee swore that the surety asked him if it was not to be paid in gold, and ón an affirmative reply, he remarked he thought so. This was long after the words were added. The jury found for the plaintiff, and the court below was satisfied with the verdict. We cannot reverse his judgment. It may be added, that the principal does not state in [535] his testimony whether or not his surety knew it was a gold contract. Judgment affirmed.