McLendon vs Shackleford.

A. W. STONE, for plaintiff in error.

R. W. SIMS and V. A. GASKILL, contra.

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

In the Court below, the Judge ordered a new trial on the ground that the verdict is not sustained by the evidence, and to this ruling the plaintiff excepts.`

After a careful review of the evidence, we are not satisfied with the proof that the death of plaintiff's slave was occasioned by the culpable negligence of the defendant, his agents or employees.

If it were so occasioned, there must be some evidence on that point not adduced on the trial, and as the effect of the judgment under review is not to conclude the rights of the parties, but to open the case for a re-hearing, we will not interfere with it.

This Court will not reverse a judgment of the Superior Court, granting a new trial on the ground that the verdict is contrary to the evidence, unless fully satisfied that such judgment is an improper interference with the province of the jury, that Court having facilities to form a right appreciation of the weight of evidence which this Court has not. Let the judgment be affirmed.

FREEMAN MCLENDON, plaintiff in error, vs. JOHN W. SHACKLEFORD, defendant in error.

1. The promise of M., on the presentation of an obligation to him, which was the subject of the suit, and purporting to be signed by him, that he would settle it but did not then have the money, but was willing to give some notes that he had, is sufficient evidence to support a verdict against him on said obligation.

Assumpsit, in Meriwether Superior Court. Tried before Judge BULL, at the August Term, 1860.

McLendon vs. Shackleford.

This action was brought by John W. Shackleford against Freeman McLendon, to recover the amount due on the following receipt to-wit:

"( Received, Griffin, August 31st, 1857, from John W. Shackleford, three new Concord no-top buggies, which we promise to sell or return, on or by the 25th of December next. Amount sold for, $375 00.

"FREEMAN MCLENDON,

"By, per SAMUEL W. MOYER."

McLendon, amongst other things, pleaded non est factum to the receipt sued on.

On the trial, the plaintiff proved that Moyer was the trimmer in the carriage shop of the defendant, and acted as his agent in the sale and exchange of buggies and carriages; that Moyer had verbal authority from McLendon to sign his name to the receipt; that one of the buggies mentioned in the receipt was sold, and the price charged by defendant on his books; that the other two buggies were exchanged by Moyer for old buggies, and notes for the difference in the exchange, and that defendant took possession of the notes, on one of which he received the money, and also took possession of the old buggies, one of which he exchanged for a mule; that the receipt was presented to defendant for payment, in the Spring of 1858, and that he said he was willing to pay it, but did not then have the money, and proposed to turn over notes, which the party presenting the receipt refused to receive, unless defendant would endorse them.

On the part of the defendant it was shown, that in September, 1857, Moyer said that he desired to go to Griffin to get some buggies, as he was out of commission buggies; that this selling of buggies on commission was a business of his own, outside of the shop business that he was doing for McLendon; that two or three days thereafter he showed a witness two or three buggies, which he said were those he obtained at Griffin; that there was a public notice, of which the following is a copy, to-wit:

McLendon vs. Shackleford.

"NOTICE.

Greenville, Georgia, Oct. 29th, 1857,
Buggies for sale,

SAMUEL W. MOYER."

Upon this evidence the jury found for the plaintiff, $375 00, with interest and cost, and counsel for defendant moved for a new trial, on the ground: "That the verdict was contrary to law and evidence, and strongly and decidedly against the weight of evidence."

The Court refused the new trial, which is the error alleged.

B. H. HILL, by SIMS, for plaintiff in error.

GEORGE A. HALL, contra.

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

We can not say that the verdict is so strongly and decidedly against the weight of the evidence as to require us to send it back.

The witness Shackleford testifies that he presented the paper, which was the subject matter of the suit, to the plaintiff in error, defendant in the suit, some time in the year 1858, when it was then due and payable according to its terms, when McLendon said "he was willing to settle, but did not then have the money, but was willing to give some notes that he had." This was very positive evidence, and directly to the point, and if the jury thought proper to believe it, and to find upon it, we do not see why we should disturb it. At all events, we can not say the verdict is against the evidence, or decidedly and strongly against its weight, especially as there was no direct evidence to the contrary.

It is true that the witness says that McLendon told him in the same conversation that Moyer had no authority to give that receipt; but if McLendon, notwithstanding, had received the buggies, and thus ratified the act, he was as much bound to pay as if he had authorized the signing of the

Chaffee St. Amand & Croft vs. Rentfroe & Brother.

receipt, and it must be presumed that he either received the buggies, or the proceeds of their sale, or he would not have agreed to settle for them.

Let the judgment be affirmed.

CHAFFEE ST. AMAND & CROFT, plaintiffs in error, vs. RENTFROE & BROTHER, defendants in error.

The repeated admissions of B. R., who is sought to be charged as a partner of his brother, S. R., that he was interested with his brother in the grocery, before and after the giving of the note in suit; that he complained of S. R.'s extravagance; proof that goods came to the place of business marked Rentfroe & Bro., within the knowledge of B. R., who claimed an interest in the goods so marked, is sufficient evidence of partnership to require a recovery against him, notwithstanding his plea of non est factum, not a partner, etc.

Assumpsit, in Fayette Superior Court. Tried before Judge HAMMOND, at the September Term, 1860.

This action was instituted by Chaffee St. Amand & Croft, against the firm of Rentfroe & Brother, composed of Burkett Rentfroe and Stephen Rentfroe, to recover the sum due on a promissory note, signed Rentfroe & Brother, payable to the order of the plaintiffs, dated Charleston, S. C., 8th February, 1857, due at four months, for $422 11.

Burkett Rentfroe pleaded to the action, that he was not the partner of the said Stephen Rentfroe at the date of the note, or before, or since that time, under the style of Rentfroe & Brother, or any other style, and that the note was given without his knowledge, consent, or authority.

On the trial of the case, the note was read in evidence, and it further appeared from the proofs made: That in the year 1856, Burkett Rentfroe said that he was a partner of Stephen Rentfroe in the grocery business in Fayetteville, and had been, all the way through; that the grocery of one Bosworth, and the Rentfroe grocery, were the only establishments of that kind in Fayetteville, in the summer of 1856,

Chaffee St. Amand & Croft vs. Rentfroe & Brother.

and Bosworth and Stephen Rentfroe agreed to, and did raise the price of liquors to ten cents a drink; that some time thereafter, Burkett Rentfroe went to Bosworth and asked him if he did not fear that the raising of the price of liquors would injure both houses, and cause them to sell less and make less money than if the price were to remain as before, and gave as a reason for asking, that he was interested with Stephen Rentfroe, or had an interest in the grocery; that goods or groceries came to the Rentfroe house marked "Rentfroe & Brother," and that Burkett Rentfroe was frequently about the grocery during the time that groceries thus marked were being received, and one of the witnesses thinks Burkett Rentfroe hauled some of the groceries thus marked on his wagon; that in 1857, the sheriff levied on the stock of groceries in the Rentfroe house, and Burkett Rentfroe asked him if he did not think it was wrong to lock up his (Burkett's) interests in that way; that some of the groceries levied on were fresh, and some unopened, and some in a small room or closet, marked "Rentfroe & Brother," which Burkett Rentfroe claimed to have an interest in, and said he intended to interpose a claim to them, but afterward declined to do so; that Burkett Rentfroe said, on another occasion, that he had gone into the business with Stephen Rentfroe to give him a start, and that from the way Stephen was going on, in extravagance in dress and in dressing his intended wife, it looked like it would ruin him (Burkett) as it was all coming out of him (Burkett); that there were debts against them, which he (Burkett) would have to pay, and that Stephen had told him that certain debts had been paid which he (Burkett) afterward ascertained were not paid; that Burkett Rentfore, on another occasion, in a conversation about the grocery, said that he did not get any, or much profits.

Upon this testimony the jury found for the defendant, Burkett Rentfroe, and against the defendant, Stephen Rentfroe.

Counsel for plaintiffs then moved for a new trial, on the ground: