Mitchem v. Allen

Lumpkin, ¿T. (After stating the foregoing facts.) 1. Error was assigned because the court allowed counsel for the plaintiffs to open and conclude the argument. The answer not only set up an affirmative plea, but denied the plaintiffs’ allegation that the defendant was indebted to them; and as to this issue “he put himself upon the country.” Moreover, he did not assume the burden of proof, but allowed the plaintiffs to proceed to make out thq^r case, introduced evidence in his own behalf, and then claimed the right to the opening and conclusion of the argument. This claim was properly denied. Reid v. Sewell, 111 Ga. 880; Southern Ry. Co. v. Gresham, 114 Ga. 183. 2. The evidence made substantially two questions: (1) Was the account due when the suit was brought? (2) Did Barrow agree for the purchase-price of the goods to be credited on the amount which the defendant, Mitchem, should pay on account of the indorsement of Allen’s note? On these subjects the evidence was conflicting. The firm of Allen & Barrow had dissolved, and Allen was a witness [409] for the defendant. His testimony was directly opposed to that of Barrow. The court admitted certain evidence tending to show that the firm was insolvent; that Barrow was indorser on a note of Allen for $400 which he had to pay; that he mortgaged his real estate .and sold certain property in order to put money into the firm; that Allen was indebted to him a considerable sum; and that his interest was transferred to Barrow. Certain other evidence was also admitted over objection. Some of the grounds of the motion for a new trial, complaining of the admission of evidence, are too vague and indefinite to raise any question for determination by this court. If anjr of the evidence admitted was subject to objection, there was no such substantial error as to require a new trial. Most of it, if not all, was admissible as tending to throw light upon the probability or improbability of the story narrated by Allen and that told by Barrow. 3. One ground of the motion for a new trial complains that the court erred in failing to charge, without request, that Allen was the manager and proper person to extend credit for the firm of Allen & Barrow, and that if he sold the bill of goods in question to Mitchem, the defendant, agreeing to wait until the fall of 1905 for payment, such a contract would bind the firm unless there was some actual fraud in the sale, known to the defendant at the time. No request was made to charge on this subject. Had it been made in the language of the ground of the motion for a new trial, it would have been properly refused. It treats the transaction merely as an •ordinary sale by a member of the firm on credit, and omits entirely any reference to the situation disclosed by the evidence that this was not the fact, but that the alleged credit was a part of, or connected with, the agreement in regard to paying off Allen’s note with goods. The court submitted to the jury the issue of whether the .account was due. 4. The defendant claimed that Barrow had ratified or assented to the arrangement between him and Allen. Barrow denied it. For the purpose of impeaching Allen, a witness was introduced, who testified to a conversation at which both Allen and Barrow were present, and in which Allen made certain statements. On cross-examination the witness testified that he thought Allen also stated that the bill of goods was sold to the defendant to be credited on the note at the bank, if he had to pay it; and that the sale was made [410] with that understanding. The witness said that Barrow was present when Allen made this statement. On his redirect examination • he stated that Barrow thereupon said that it ivas the first he had heard of it. Objection was made to this remark of Barrow, on the ground that the defendant was not present. When Allen made the-statement i'n reference to the agreement with the defendant, if Barrow had remained silent it could have been argued that he thereby acquiesced in it. It was admissible to show that he did not do so. Iiis remark was a part of the same conversation, and was admissible.. There was no error in overruling the motion for a new trial. Judgment affirmed. All the Justices concur.