Levens v. Smith

Fish, J. 1. It appears from the record, that at the trial of this case on appeal to a jury in the justice’s court, the defendant amended his pleading by admitting that he executed the note and that the plaintiff was the legal owner and holder of it. In his petition for certiorari the plaintiff complains that thereupon the defendant was allowed, over objection, to open and conclude the argument before the jury. We do not think there is any merit in this complaint. In Montgomery v. Hunt, 93 Ga. 438, this court held that: “Where suit was brought by the holder of a promissory note payable to the order of a named person and indorsed by the payee in blank, and the defendant in his plea admits the execution of the note and the ownership of it by the plaintiff, a prima facie case for the latter is made out. The burden of proof to establish his defense is upon the defendant, and consequently he is entitled to open and conclude.” If, as we confidently believe, the decision therein rendered correctly lays down the law applicable under the state of facts there presented, it is to be regarded as controlling upon the question raised in the case at bar. 2. Further complaint is made, that the defendant was per [485] mitted to testify that the' consideration of the note in suit was a portion of the purchase-money he had agreed to pay for a certain engine, the price of which was $150, payable-in three instalments of $50 each. The objection urged to this testimony was, that “there was better evidence” of the facts thus elicited. Of what the “better evidence” referred to by counsel consisted the court was not, however, informed, so far as the record before us discloses. Clearly, no error was committed in overruling an objection so vague and indefinite. 3. Under the evidence submitted, it is a matter of grave doubt whether the defendant’s plea of recoupment was sufficiently sustained, either by showing a breach of the express ■warranty alleged to have been made by the plaintiff, or by proving the breach of any implied warranty raised by law. At all events, the amount of the verdict found in his favor by the jury was totally unwarranted, under any view of the evidence. Accordingly, the plaintiff’s petition for certiorari ought to have been sustained and a new trial ordered. Judgment reversed. All the Justices concurring.