Erskine & Co. v. Duffy

Hall, Justice. 1. A bill of exceptions to a judgment granting or refusing to grant a new trial will not be dismissed on the motion of the defendant in error, because it fails specifically to set forth the errors alleged to exist in such judgment. The writ of error will not be dismissed for this reason, and [608] the party deprived of a hearing, at least as to the general grounds which are usually relied on to obtain a new trial, or such as set out newly discovered evidence which might or should produce a different result on another trial. The motion for a new trial, and the grounds thereof, have always, under our practice, been deemed an essential part of the record in the cause, and by the act of 1870, the brief of evidence file/l with such motions and approved by the court was likewise made a part of the record, and, like the pleadings and other portions of the same, was not (except by reference thereto) required to be set out in the bill of exceptions. Code, §4253. 2. If the grounds of the motion shall plainly specify both the decision complained of and the error alleged to exist therein, in accordance with the requirements of §4251 of the Code, then this court would be bound to hear it under a general exception to the judgment granting or refusing the new trial prayed; but if deficient in either of these particulars, we would not, under such general exception, feel authorized to determine it, for we would be considering and deciding something not heard in the court whose sentence, judgment, decision or decree we are invoked to review, at least to the extent of the particular point specified as an error in the judgment or decision complained of. This course has been so frequently and uniformly pursued by this court, especially of late years, that it would be superfluous to cite the numerous cases in which it has been done. The 6 th ground of the motion in this case, while plainly specifying a charge of the court, of which complaint is made, yet does not specifically set forth what is the error that is alleged to exist in the charge. It stated generally that the court erred in giving it, but why he erred is not stated on the record. This precludes its consideration here; and were we even at liberty to pass upon the error insisted on in argument, we should find ourselves unable to agree with the view presented with so much earnestness and force by the learned and [609] able counsel for plaintiffs in error, and therefore feel the less reluctance in disposing of it as we have done. The principles of law embodied in the charge are not seriously questioned, but it is urged that they are inapplicable to the facts in evidence; in short, that there was no evidence that could authorize it. We, however, think otherwise, and are pretty well satisfied that certain aspects of the proof not only justified, but required the charge given. ’ 3. The testimony of the parties as to the material facts in, the case, was directly in conflict. ,. The jury, had the right to credit the plaintiffs account of the matter, and to reject the defendants’,, as they seem to have done. The presiding judge, who heard the witnesses testify, and saw „ their manner of testifying, found no fault with their conduct in this respect, and was satisfied to let their verdict stand. We cannot say that in so doing he abused the discretion vested in him, not in us, by the law. . Besides, we , are inclined to, tliink that there were several circumstances, which were neither denied nor explained, that tended to .corroborate the plaintiff’s statement, and that the verdict is rather in accordance with than, against the weight of evidence. What has beén said disposes of the first four grounds of the. motion for a new trial.. . 4. In another ground of.the motion (the 5th) it is insisted that the verdict was contrary to this charge of the’ court, viz.: “It is the duty of the court to construe any written instrument introduced in evidence. Counsel have' called attention to a letter from plaintiff to defendants,, which is before you. I refer to the .letter of January 1st,. 1883, in which this expression occurs: ‘ Place the seven hundred dollars ’ (sent with the letter) ‘.on interest.’ . I instruct-you that the. legal effect of this letter is to give the defendants general-authority to place the money mentioned, the’ seven hundred dollars, for the plaintiff in the hands of -some person who would pay him interest therefor.” When .taken in connection with the facts in proof,- and with other parts of the charge applicable to those facts, it is not clear [610] to our mind that this part of charge was disregarded or overlooked by the jury in finding their verdict. But whether this is so or not, we are satisfied that the charge itself was too broad and sweeping, that it was not sufficiently qualified and guarded in its terms; and from what occurred after -the verdict was returned, we think the judge was of that opinion himself, and concluded that, inasmuch as the jury had, by their finding, rectified .the error into which he had inadvertently fallen, he would not disturb it. In view of the course of dealings between these parties, and the modification or slight alteration made.therein in July, 1882, as respects the defendants’ liability for interest, as the plaintiff testified, and their non-liability, as was testified for them, we think the expression, ■“ place the $700 on interest,” was ambiguous, and did not justify the inference the court drew from.it, viz., that it conferred general authority upon the defendants to place it in the hands of any person who would pay interest for it. If the plaintiff’s contention was correct, such was certainly not the meaning of' the expression. At all events, it was a question for the jury, and should have been submitted for their determination, with proper instructions from the court. To say the least, the propriety of the court’s treating as an instrument embodying the terms of the contract, and construing it in such a manner as to bind the jury, every expression found in correspondence relating to the conduct of the business in pursuance of the contract, seems not in accordance with the provisions of the Code conferring the power and making'it the duty of the court to construe contracts, and other provisions qualifying and restricting this power, as’ interpreted by our judgments and as regulated by Common law rules. Hall's Self-Feeding Cotton-Gin Co. vs. Black, 71 Ga., 450, and citations; 2 Wharton’s Contracts, §450. 5. The remaining ground relates to the newly-discovered ¿vidence,' which, we think, is merely cumulative, and is by [611] no means of a conclusive nature or tendency, as it professes only to give admissions made in a casual conversation between the plaintiff and the witness—a species of evidence which should, under the most favorable circumstances,'be scanned with care. Code, §3792. In this case, the conversation was directly denied by the' counter-affidavit of the other party to it, and the integrity of the affiant of if was assailed. The court, in the exercise óf- its discretion, could say which of these parties was entitled to credit, and we have no power'to control his discretion, unless it shall be satisfactorily shown to us it has been abused, and in this instance there is no reason to impute to the presiding judge such aii abuse of discretion.' As' a ground for a new trial, the discovery of new testimony is tolerated rather than favored, because of its liability to .abuse, and its- tendency, as a general rule, to mislead. " Ex parte affidavits, gotten up after the verdict and after the exigencies of the case have been fully disclosed, and with a view to meet and overcome these exigencies, and where no opportunity of cross-examination is afforded the other party, are certainly not altogether free from suspicion, and, under the circumstances, should be scanned more closely, and received and considered with more than ordinary caution, especially when they set forth verbal, admissions only. Judgment affirmed.