Finney v. Sanford

The error assigned to the judgment of the Court below in this case, is the granting a new trial on the grounds specified in the motion therefor. There is no error alleged as-to the rulings of the Court upon any question of law in submitting the evidence to the jury. The evidence as disclosed by the record, shows that the wife had a separate estate. That a feme covert having a separate estate may contract, and bind that separate estate for goods and family supplies purchased for the benefit of the same, is not now an open question 'in the Courts of this State: Wyly et al., v. Collins & Company, 9th Georgia Reports, 223; and her admissions if freely and voluntarily made, are competent evidence for that purpose. The wife is a feme sole as to her separate estate, unless controlled by the deed of settlement, or will which creates and conveys it to her. But whilst the wife may contract *300and bind her separate estate as a feme sole, she cannot bind her separate estate by any contract of suretyship-, nor by an assumption of the debts of her husband: Code, 1773. The main and controlling question on the trial of this case in the Court below, was whether the goods and family supplies for which the note of the husband was originally given, were, in point of fact, furnished for the use and benefit of the wife’s separate estate, or whether the goods and family supplies, were purchased by the husband for his own individual use exclusively, and the wife signed the last note merely as surety for her husband’s debt only. In regard to this main and controlling question in the case, the evidence is conflicting *and contradictory. If the jury had thought proper to believe the evidence offered on the part of the defendants, and had found a verdict for them, then there would have been sufficient evidence in the record to have sustained that verdict. But as the jury have thought proper to believe the evidence offered on the part of the plaintiff in preference to that offered by the defendants, there is sufficient evidence-in the record to sustain their verdict. The whole question depended on the weight and credit which the jury thought proper to give to the evidence before them on this material point in the case. This Court has- repeatedly held, that ia cases where the evidence is conflicting as to the facts, it will not interfere with the verdict of the jury: Flournoy v. Newton, 8th Georgia Reports, 306; Fowler v. Waldrip, 10th Georgia Reports, 351; and many other cases which might be cited.

In Flournoy v. Newton, Lumpkin, J., in delivering the judgment of the Court, said: “If .a new trial is to be granted merely because in the opinion of the Court, the weight of the evidence is on the other side, trial by jury is virtually annihilated, and the Court will be substituted for the jury in every case, in trying the credibility of testimony, and the preponderance of the proof.” In Fowler v. Waldrip, Nisbet, J., in delivering the judgment of the Court, said: “We have over and over again refused to award a new trial when there is evidence on both sides, although the strength of the testimony be against the verdict.” When the evidence is conflicting and contradictory, the jury, and not the Court, are the exclusive judges as to the credibility of the witnesses,, and as to the weight to which their evidence is entitled, in view of their interest, their relation to the parties and other circumstances connected with the transaction under investigation; and the Court has no legal power or authority to interfere with the verdict and set it aside, on the ground that it is contrary to the .evidence. It is only in cases where the verdict is decidedly and strongly against the^ weight of evidence that the Court may exercise a sound cliscretion under the law, and set aside the verdict of a jury. If the-verdict *is decidedly and strongly against the weight *302of evidence, so much so, as in the sound discretion of the Court, to make it an illegal verdict, it may be set aside, and a new trial may be granted; fmt when there is evidence on both sides and that evidence is conflicting and contradictory, the Court has no legal discretion to control and set aside their verdict, and when it does so, it invades the legitimate province of the jury as regulated by law. According to the well established rulings of this Court, the judgment of the Court below setting aside the verdict, and granting a new trial, on the statement of facts contained in the record, was error. Tet the judgment of the Court below be rer versed.

dissenting.

I ,dissent from the judgment of the majority of the Court in this case. I think a new trial ought to have been granted. I think the verdict of the jury was strongly and decidedly against the weight of evidence. Indeed, I think there was almost no evidence to sustain it, and that the jury acted under an entire misapprehension .of the legal effect which ought to be given to the evidence that was before them. It was admitted on all hands that the note sued on was given in lieu and on the taking up of, a note made by Mr. Sanford, the husband. Prima, facie, this note, so given by the wife, in place of her husband’s note, is, under section 1773 of our Revised Code, void. It falls, therefore, upon the plaintiff in the suit, to show that the original debt was Mrs. Sanford’s, and not her husband’s, and that the note now sued on, though given apparently in lieu of her husband’s debt, was in fact given for her own debt. He proves this thus: The merchants who sold the goods, told Mr. McKinley so. McKinley went to the Sanfords, and the old gentleman said so, and so did the son, and so did Mrs. Sanford. And more, she and her son, by their solemn deed under seal, acknowledged and admitted .that the goods had been sold to Sanford for the use of her separate estate. But *what have the statements of the merchants, and of Mr. Sanford and the son, to do with it. They are no evidence at all against Mrs. S.anford. What' they said was for their own interest, not under oath, and not admissible as evidence. It was' only heard as ’ inducement, part of the res gestae, and is .entitled to no weight as evidence. So, too, of the admission of the son. They bind him, but they are not evidence at all against her. It is said, however, that her admissions are strong and decided, and weigh heavily against her. I think not. It is a settled rule, that the acts of the wife under such circumstances are to be received with suspicion. She is under legal duress, the law suspects the influences of her husband. But here she is doing what is prima facie illegal. The law pre*303sumes her under duress, and as to such contracts declares she shall not bind her separate estate. She is under a disability to assume a debt of her-husband; she can no inore do it by admitting it to be her own debt than in any other way. Her admissions stand upon the footing of the statement of a drunken man that fie is sober, of an insane man that he is sane, or of one under duress that he is free to act. They are worth but little—-to give them any weight, is to assume for true the very thing in dispute. If the admissions of the wife, are to have weight in a case like this, the statute pilohibiting her from assuming her husband’s debts is entirely worthless. Since it is very easy for those interested to so manage that the assumption shall be in the shape of such an admission. I have not the least faith in this kind of testimony. My experience is that this statute is a salutary one. And if it is to be got round by having the wife, instead of formally assuming the debt, make an admission that it is her own debt, the provision might as well have been left out of the Code. An improvident husband and a greedy creditor are not to be baffled by a few lines in the Code, when there is blazed out so plain a road around the difficulty.

. For these reasons I dissent in this. case. Sanford, Mrs. Sanford, and the merchant who sold the goods, all testify that this was Sanford’s debt, and not hers. Sanford says he *was the owner of fifty-six slaves, and of the mules and stock. Mrs. Sanford says but four of her negroes were at work on the place, though the place was hers. Nor is there any proof of what was the character of the goods. Against this array of testimony there is only Mrs. Sanford’s admissions, made, as she says, under the pressure and importunity of her husband. It was not entitled to any such weight. The jury mistook the law in such ,cases, and gave it the effect of an admission as in other cases. This was. in my judgment, wrong, and the verdict ought to be set aside.