Bohanan et al., vs. Bonn.

FIELDER & BROYLES, WADDELL & BLANCE, for plaintiff

in error.

HUGH BUCHANAN, contra.

By the Court.-JENKINS, J., delivering the opinion.

1st. The first error assigned in this record is the rejection of the testimony of Deese, a witness offered by the plaintiff, because of his interest in the event of the suit. One of the deeds in plaintiff's chain of title is made to William F. Bond & Co. One of the demises laid in the declaration is in the name of Wm. F. Bond & Co., consisting of William F. Bond, Joel Deese, and D. C. Gibson. Decse was introduced to prove that the three last named persons (of whom he is one) constituted the firm of Wm. F. Bond & Co. Deese testified that he had no interest in the event of the suit, "having been released by James Bond," who was the last lessor of the plaintiff. By plaintiff's evidence in chief, it appears that the only title James Bond had to the land was a deed from William F. Bond individually, for his interest therein, specified to be one half. He had no deed from Deese. From what then did Bond release Deese? The interest of Deese was derived from Harris; and there is no evidence that he had ever parted with it. He was one of plaintiff's lessors. He was, moreover, for aught that appears, liable for costs. In all this there is legal evidence of interest, against which, the opinion of the witness that he has no interest, cannot prevail.

Besides, as will appear in the sequel, the sole fact sought to be proven by this witness, would not (if in evidence) have availed the plaintiff. The evidence was properly rejected.

2d. It is objected, secondly, that the charge of the Court precluded the jury from finding one-half, or any part, of the land for the plaintiff. Conceding that the charge of the Court had this effect, plaintiff in error has no reason to complain, unless it appeared that he was entitled, under the law and the evidence, to recover less than the whole interest. If so entitled, it must have been either upon the demise of Wm.

Bohanan et al., vs. Bonn.

F. Bond, Deese and Gibson, or upon the demise of James Bond. He could not have recovered upon the former: 1st. Because there was no evidence of title in Deese or Gibson. 2dly. Had there been-had the evidence of Deese been received the joint demise of Wm. F. Bond, Deese and Gibson, could not have availed the plaintiff, because the evidence showed a severance of their joint interest: 1st. By the deed from Wm. F. Bond to James Bond. 2dly. By the sale, by the sheriff, of Wm. F. Bond's interest in the land. "If a joint demise is laid in the declaration, evidence must be given of a joint interest in the lessors." 2. Greenleaf on Evidence, sec. 317. And the evidence must show this joint interest to have existed at the commencement of the suit.

Neither could there have been a recovery of a part interest upon the demise of James Bond, for the evidence shows that at the time of his purchase of Wm. F. Bond's interest in the premises, there was a judgment lien upon that interest in favor of James Bond, and that, before the commencement of the suit, that interest was actually sold under that judgment. by the sheriff, and a title executed to the defendant as the purchaser.

This title the plaintiff in error sought to invalidate, by showing that the judgment had become dormant, notwithstanding the entries upon the fi. fa., showing the contrary. This point in the case was contested on both sides with great zeal. Its merit depended upon the bona fides of the following entry, viz: "No property to be found whereon to levy this fi. fa., this, the 4th of August, 1846. Signed William H. Macarthy, sheriff." Plaintiff introduced a witness, who swore that on a certain day, in 1847, he saw the fi. fa. at Cassville, when and where the sheriff of Cass county sold a lot of land under the same fi. fa., and examined it carefully, to ascertain whether it had become dormant, and that the above entry of 4th August, 1846, was not upon it. Defendant introduced another witness, who testified that he examined the same fi. fa. on the same day, at the same place, and on the same occasion, and that the entry impeached as fraudulent was then upon it. Both witnesses stood before

Johnson vs. Black & Cobb.

the jury as credible; their testimony conflicted; the jury predicated their verdict upon that of the witness swearing affirmatively, setting aside that of the witness who swore negatively, (though equally credible,) and in so doing they followed the law. The plaintiff was not, therefore, entitled to recover an interest less than the whole.

3d. We have only to consider the last exception, viz: that the verdict was contrary to law, the charge of the Court, and the weight of the evidence. Having found it necessary, in considering the second exception, to show that plaintiff had failed to prove a title to an interest less than the whole, and in so doing, to show that there could be no recovery on the demise of William F. Bond & Co., or of James Bond. We need only add, that as plaintiff himself showed title out of Bohanan, and out of Harris, (the other lessors,) there could have been no recovery on their demises. We think the verdict should not be disturbed.

Let the judgment be affirmed.

RILEY J. JOHNSON, plaintiff in error, vs. BLACK & COBB, defendants in error.

1. A charge wholly unwarranted by the evidence, is erroneous. 2. A verdict, that is against law and evidence, will be set aside.

Assumpsit, in Floyd Superior Court. Tried before Judge HAMMOND, at the July Term, 1860.

On the 14th of June, 1855, Messrs. Black & Cobb sold to Riley J. Johnson fifty-three bales of cotton, being a crop lot of cotton, and designated as the Walker lot, at the price of ten and a half cents per pound, and at the time of the trade, Johnson paid in part for the cotton $1,000 00. According to the terms of the contract, the cotton was to be delivered in the city of Rome, within a reasonable time. At the time of the trade, the cotton was sixty-five or seventy miles distant

Johnson vs. Black & Cobb.

from Rome, under a shelter, on the banks of a creek a few miles from the Coosa river. On the 14th of July, 1855, twenty-seven bales of the cotton were delivered, and Johnson sent them to a cotton factor in Charleston, South Carolina, by whom they were sold on the 18th of August, 1855, at eight and a quarter cents per pound. The total weight of the twenty-seven bales was twelve thousand four hundred and forty-six pounds, and the aggregate price received for them was $1,026 79. On the 26th of July, 1855, twentysix bales of the cotton were received in Rome, and tendered to Johnson, who refused to receive them, saying at the time, that he should have nothing more to do with it. Afterwards, Black & Cobb sent the twenty-six bales of cotton to a factor in Augusta, Georgia, by whom the same were sold, on the 7th of November, 1855, at six and a half cents per pound, the twenty-six bales weighing twelve thousand one hundred and ninety-nine pounds, and were received by the factor only a few days previous to the sale.

On the 2d of November, 1855, Black & Cobb instituted suit against Johnson, to recover the balance due for the cotton, according to the terms of the contract.

From the evidence adduced on the trial of the case, it appeared that a crop lot of cotton was understood amongst cotton buyers to be an average lot of cotton, that is, the larger part of it good; that from eight to ten days was a reasonable time to deliver cotton by wagons, when the cotton was eighty-five or ninety miles distant from the place of delivery, and that two weeks was a liberal time; that the value of an average crop lot of cotton in August, 1855, was ten and a half cents per pound; that the twenty-seven bales sent to Charleston was of very inferior quality, and in a badly damaged condition, and that the twenty-six bales sent to Augusta, was likewise of very inferior quality, and in such a damaged condition as that the railroad company would not give a receipt for it without an express statement that it was in "bad order"; that the price of a good crop lot of cotton, in the city of Augusta, in November, 1855, was from eight to eight and a half cents per pound.

Johnson vs. Black & Cobb.

It was also proved that the cotton in question belonged to the fourth class of cottons, there being but one grade below it.

The plaintiffs also proved, that every exertion was made to hire teams and wagons to haul the cotton to Rome before the time that it was delivered, and that the Coosa river was so low that the steamboats could not run.

It was also shown, on the trial, that cotton declined from its highest price in June, as much as four cents per pound by the month of August.

The presiding Judge charged the jury, (amongst other things,) "that the first twenty-seven bales of cotton had nothing to do with the case, if the jury believed they had been received by the defendant, and settled for by him, and that if it was the contract to deliver the cotton by steamboat, the plaintiffs were not bound to deliver it until steamboats could run."

The jury returned a verdict in favor of the plaintiffs for $426 00, with costs of suit, and counsel for defendant moved for a new trial of the case on the following, amongst other grounds, which the Supreme Court did not consider, to-wit:

1st. Because the verdict of the jury was contrary to law, and strongly and decidedly against the weight of the eviidence in the case.

2d. Because the Court erred in the charge given to the jury, as herein before stated.

The new trial was refused, and that refusal is the error alleged.

UNDERWOOD & SMITH, for plaintiff in error.

F. C. SHROPSHIRE, contra.

By the Court.-LYON, J., delivering the opinion.

1. The charge of the Court, as stated in the ground of the motion for new trial, that "if the contract was that the cotton was to be delivered by steamboat, the plaintiff was not bound to deliver the cotton until steamboats could run" was erroneous, because there was no evidence before the Court to warrant that charge.