Empire Cotton Oil Co. v. Penny

Smith, J. 1. In the trial of a ease a witness may refresh his memory by-referring to a memorandum made by him at the time of the transaction, but after thus refreshing his memory he must testify from his recollection as thus refreshed. This is true where a court, reporter, who had taken down the evidence of a witness in a former trial of the case, testified that he could not, independently of his notes of such testimony, testify as to what the witness had sworn ; and it was not error to refuse to permit him to read to the jury his notes. Albany Phosphate Co. v. Hugger, 4 Ga. App. 781, 782 (62 S. E. 533). 2. A transcript of the evidence introduced on a former trial of the same case between the same parties, when properly authenticated, is admissible in evidence on another trial, not only for the purpose of impeaching one of the parties to the case who is a witness, but also for the purpose of proving admissions made by such witness. The court having admitted such transcript in evidence, it was error to confine the evidence to impeachment alone. It was a question of fact for the jury to determine whether or not the husband was the agent of his wife in the purchase of the fertilizer included in the account sued on; and the action of the judge in granting a nonsuit was error. Judgment reversed. Jenkins, P. J., and Stephens, J., concur. C. H. Jones testified that he was cashier and acting manager for the plaintiff in 1913; that the sum charged in the account sued on was due and the value of the fertilizer was substantially as set forth in the account; that he remembered the shipment.of fertilizer to Mr. Stephens and the giving of notes for it; that he could not testify as to whether the plaintiff company knew at that time that the farm referred to belonged to Mrs. Stephens; he did not know it personally; “Mr. Lashley handled the fertilizer sales and passed on the credits, and he made the sale to Mr. Stephens.” There was no testimony in addition to that of the witnesses mentioned above. The court granted a nonsuit, and the plaintiff excepted to that judgment and to the rulings stated above. J. T. Hill, J. L. Wimberly, for plaintiff, cited: On admissibility of testimony: 64 Ga. 406 (5); 76 Ga. 623 (2); 6 Ga. 365 (2), 373; 30 Ga. 378; 111 Ga. 815 (3). As to agency of husband, etc.: 123 Ga. 302; Park’s Code, § 3596. Pearson Ellis, for defendant, cited: 115 Ga. 109; 129 Ga. 522 (5); 139 Ga'. 816 (6); 145 Ga. 689; 2 Ga. App. 269 (2); 123 Ga. 302 (distinguished).