Hammond v. Drew

Jackson, Justice. This was a suit brought on a promissory note for $125.00. The jury found for the defendant, and the plaintiff, N. J. [191] Hammond, surviving partner of A. W. Hammond & Son, made a motion for a new trial, which, was overruled, and he excepted. Only two of the grounds set out in the motion are certified, and only one was insisted upon in argument here. Our consideration of the case will be confined to the one. A. W. Hammond, being dead, and he having negotiated the trade with Drew, is the latter a competent witness ? The suit was for services rendered in a claim to a-lot of land by Drew, for which ejectment was brought. The plaintiff introduced the note sued, and also the contract set out in the record, by which it appears that this note was embraced in the same contract with another given to another attorney, for services in the same case; and this contract, thus introduced by the plaintiff himself, was made by A. W. Hammond and Spence, the other attorney, for the lawyers, and by Drew on his own behalf. Spence testified in the case for the plaintiffs, and the question is whether he having done so, the other party to the contract ought not also to be heard. In the case of Finney vs. Cadwallader, 55 Ga., 75, it was held that where a note and mortgage were only parts of a general contract embracing other items, and a plea of recoupment was filed for damages arising out of the other parts of the general contract — that on a proceeding to recover on the note and mortgage, the plea was good, because the general contract embraced the mortgage and note, and the other items-too: Applying the principle there enunciated here, it would seem that as the note sued on was embraced in another general contract made between Ham-' mond & Son and Spence of the one part, and Drew of the other, and as Spence was fully heard on the one side, and not only the note but the whole contract was introduced by the plaintiff, that the spirit and reason of the adjudications’ of this court on this class of questions would entitle Drew also to be heard. The note sued upon and this agreement, all introduced by plaintiff, made the real contract put in is [192] sue and to be passed upon by tbe jury. This was the real cause of action, and Spence was a party to that cause of action. It is true that Spence is no party to this suit, nor is he a partner at law of the Hammonds; but as to this contract of bringing this suit, he was associated with them, a party to the contract, and, as to this case, a quasi partner. In the ease of the North Georgia Mining Company vs. Latimer, 51 Ga., 47, it was held that where several parties were on one side of a contract, and some dead, and others living to confront the one living party on the other side of the contract, the other party was competent. The principle there ruled covers this question under the facts made in this record. The other grounds were abandoned in the argument. Judgment affirmed.