Harrison v. Powers

Hall, Justice.

The questions upon which this case must turn relate to the validity of Ball’s title to the papers sued on, and to the defendant’s satisfaction of the same by making payment thereof either to Ball or to the assignees in bankruptcy of West, Edwards & Co., from whom the goods were purchased, for which the papers were given by defendant, as it was alleged, on the eve of the bankruptcy of Wesf, Edwards & Co.

1. It is contended that the acceptances in question were not only had on Sunday, but were transferred to Ball on that day. The papers show from their date that they were made on a working-day, to-wit, on Saturday. There is undoubtedly testimony to the effect that there was a conversation between West, Edwards & Co. and Ball on Sunday as to the transfer of these papers. The evidence fails to show either that Ball was present at their execution, or that he knew they were executed on Sunday, or that they were assigned to him, and that he became their.owner on that day. Defendant’s own witness, A. J. West, while he shows that there were some negotiations in reference to the matter on Sunday, does.not leave it at all doubtful that the. transfer was not.consummated on that day, but thqit its comnletion was postponed to another and a later day. The law governing this question was settled, when this case was formerly before this court, and is conclusive as to any question which may now be presented on that particular subject. 62 Ga., 757. It was then held that, if the paper was accepted and delivered on Sunday, it was void between the parties, but if it was falsely dated as of another day and came to the hands of an innocent holder, who took it for value, without notice, in the due course of trade, the acceptor was estopped from setting up that defence in a suit against him by such holder. It was further held that, if Ball’s contract of purchase whs on Sunday, then it was notin the due course of trade, and he would not be protected. The evidence fails to show, as we think, the -two facts which render this defence to the suit available. As before remarked, the drafts and acceptances do not show on their face that they were made on Sunday, but on a different day, nor does it appear that Ball had any notice that they were falsely dated, or that he became the holder of them in virtue of any contract that was consummated on Sunday.

The 4th ground of the motion for a new trial sets forth a portion of the charge given on this subject, and as far as that goes, it> is literally correct and in strict accordance with what was ruled when the case was here before.

The charge contained in the 5th ground of the motion, and to which the plaintiffs except, while substantially correct, would have been more accurate if, after instructing the jury that if the transfer of the papers sued on was not finally completed on the Sabbath day, but was after-wards consummated on another day, then it would, for all purposes, be valid, and the plaintiff would be entitled to recover, had the latter clause thereof been omitted, namely, “ unless some other good defence is established by the evidence, under the law, as the court will explain.” Coming, as it did, immediately after the instructions embodied in the 4th ground of the motion, We do not think it sufficiently explicit or guarded in its terfns. The jury might have been led to infer that there was another defence in the case which would justify them in finding against, fhe Inna fide holder of paper transferred in the fair and usual course of trade for value, and without notice of any infirmity or illegality in its consideration; that such an application of the charge was outside of the intention of the court we are well aware, but we cannot be satisfied that the jury were equally well apprised of that fact. Reference to cases cited on the brief of counsel will establish the principle Fere announced, and need not be repeated in this opinion.

2. On the other main question made by the record, we are of opinion that the defendant utterly failed to show that he either paid West, Edwards & Co., or their assignees in bankruptcy, or Ball, for the goods purchased, and for which the acceptances sued on were made. On the contrary, the evidence shows that the acceptor has not settled for such goods, but that he still owes for a large balance of the same, an amount probably enough to cover the entire indebtedness of which they are the evidence. It is clear that he purchased goods from West, Edwards & Go., and that those purchases amounted, in the aggregate, to some $24,000.00; that he paid neither West, Edwards & Co. nor Ball any part of that sum, and that, by an arrangement with the assignees in bankruptcy, he turned over to them of that amount some twelve thousand dollars in goods and money. It also appears that the assignees, under the order of court, had a settlement with Ball for the effects traced into his hands, including these papers; that in that settlement Ball was allowed to retain these papers, and, upon accounting for other effects that had come into his hands to which the assignees were entitled, he was discharged from all suits seeking to render him liable on account of his dealings with the bankrupts. In that settlement, it was further provided that Ball might retain “ any collaterals he may have uncollected, until he collects his full unsettled balance ” due from the bankrupts to him, after satisfying claims that he proved against them in the bankrupt court, and that these papers sued on were among the collaterals then in his hands, and a suit, was tl en pend* ing against the acceptor in favor of Ball for their collection. It was a conceded point that Ball could not settle with the assignees unless Powers, the acceptor, also settled with-them, nor could he make the settlement unless Ball likewise settled with them. It is not denied that he was cognizant of all that'transpired in relation to this settlement between the assignees and Ball, and it does not appear that he ever objected or set up any opposition to it until long after it was consummated, or that he ever claimed the right to retain possession of the balance of the goods, or the proceeds arising therefrom in his hands, without accounting to Ball for them until some time after this whole controversy was wound up, and the rights of the parties to it finally adjusted and established. When this arrangement was completed, the jurisdiction of the bankrupt court over the subject was at an end, and the parties in relation to the paper occupied the same' position as they would have done had it never been administered or disposed of in that court. Sargent et al. vs. Helton et al., and Traer et al. vs. Clews, recently decided by the Supreme Court of the United States, 115 U. S. Rep., pp. 848 and 528.

If the jury found that Ball was a bona fide holder of these acceptances, then this law should-have been given them in charge as applicable to these particular issues, instead of the charge given, which is set forth and excepted to in the 10th, 11th and 12th grounds of the plaintiffs’ motion for a new trial. It is perfectly immaterial what was the motive of the defendant for making this arrangement for a settlement of the bankruptcy matters with, that court, or what induced him to submit to the judgment, then rendered, unless he was misled by the fraudulent representations or practices of a party thereby benefited, or’ unless he was so situated that by the exercise of diligence-he. could not have obtained accurate knowledge of the facts which, in its absence, influenced him to act.

3. Testimony to the effect that Ball was the uncle of Shelton Edwards may have been competent to show fraud in the dealings between Ball and the firm of which he was a member, so far as that fraud, if any was alleged and' set up- and existed, affected the rights of defendant in the dealings between himself, Ball and that firm. Relationship is, undter such circumstances, a badge of fraud; but under the pleadings, it is extremely doubtful, to say the least, whether any issue was presented to which such testimony was pertinent. That dou'bt may have rendered it competent, and the plaintiffs take nothing by the 6th ground of the motion for new trial.

4. So of the 8th ground of the m-otton for a new trial. The admission of the witness, re-introduced, after both sides had closed their case, and after some argument and the intervention of a night, was a matter within the discretion of the court, which we cannot undertake to control, unless it was manifestly shown that the party objecting suffered seriousd'etriment therefrom. "• .

5. In view of the serious attack that had been made upon the character and credibilify of the witness, Edwards, and of the further fact that the plaintiffs denied that Ball ,-liad been settled with and received a transfer of the paper on Sunday, we think the evidence ruled.out by the court, and which ruling is complained of in the 9th ground of the motion for new trial, that Edwards went to Savannah on' that day for the purpose of making arrangements to settle with Ball the indebtedness of West, Edwards & Company to him, and to enable that firm to procure assistance from him, by which they could carry on their business, should have been admitted, not only because it had a tendency to corroborate Edwards’s testimony, but also had a bearing upon One of the main questions in the case, to-wit, as to the day on- which Ball became th^ owner of the acceptances.. •’

' This disposes of the plaintiffs’ bill of exceptions, and leads to the conclusion that they should have had a new trial, not only because of the above errors in the charges and rulings of the court, but because of the want of evidence to support the finding, at least as to the two main grounds of the defence.

6. This brings us to the defendant’s bills of exception pendente lite and cross-bill, in which the only errors alleged', not already anticipated and ruled upon in what has been said on the plaintiffs’ bill of exceptions, are, first, in ruling out certain depositions bf Jas. M. Ball, which were offered with a view to show that he had refused to answer interrogatories propounded to obtain information as to his actions on Sunday in reference to the papers sued on, and other questions in relation to the bankruptcy of West, Edwards & Company, and his dealings with them immediately preceding it. Secondly, the exclusion of Powers’s testimony, on the ground that Ball, the other party to the transactions inquired about, was then dead.

7. We think there was no error in refusing to permit Powers to testify. Questions raised by this assignment are well settled by the repeated rulings of this court, all of Which were fully reviewed in Flournoy & Epping vs. Wooten, ex'r, 71 Ga. Rep., 168. With the conclusion reached in that case we are fully satisfied.

8. The pursuit of one’s ordinary avocations on Sunday is an indictable offense, as was held when this case was here before, and we know of no rüle that will subject a party to injury for availing himself of the privilege of refusing to answer questions which may have a tendency to either criminate or subject him to penalties. A party is Hot bound to accuse himself either directly or indirectly. This principle is as old as Magna Uharta and is embodied in all our constitutions, both state and federal. Of what worth would the protection be if a party availing himself of it incurred detriment or loss by so doing. See authorities cited on brief of counsel for plaintiffs in error, as well as those cited by the defendant in error, and in addition Higdon et al. vs. Heard, 14 Ga., 255, 258 ; Gravett vs. State, 74 Id., 191.

The other depositions relating to bankruptcy were irrelevant to any issues made by the pleadings as they stood; and although the evidence might have been competent in a case where the date of the dealings with bankrupts was material, yet there was no question in this case as to that date. That fact was admitted. The rejection of the evidence, even if admissible under any -circumstances, worked no hurt to the defendant. There is nothing in these bills of exception to require or authorize a reversal of the j udgment rendered on them.

On the plaintiffs’ bill of exceptions we order the judgment reversed.