Lloyd & Pulliam vs. Wright, Griffieth & Co.

B, H. HILL, contra.

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

The only question in this case is was the verdict of the jury, so strongly and decidedly against the weight of evidence as to constrain the Superior Court to grant a new trial, and this Court to reverse its decision in refusing to order a new trial, as a flagrant abuse of its discretion? We think not.

It does not satisfactorily appear, that the unsoundness of the negro existed at the time of sale. It may have been brought on afterwards. Had the verdict been the other way, we should not have felt compelled perhaps to disturb it. Neither do we as it is. The case was fairly submitted, and the jury were fully competent to weigh the testimony, as they doubtlessly did.

Judgment affirmed.

LLOYD & PULLIAM, plaintiffs in error, vs. WRIGHT, GRIFFITH & Co., Defendants in error.

So long as the buyer continues to have a right to object either to the quantum or the quality of the goods, there has been no acceptance and receipt within the meaning of the statute.

Complaint, from Fulton county, tried before Judge BULL, October Term, 1857.

An action was brought in the Court below by the defendants in error, against the plaintiffs in error, to recover $120 upon an open account for cigars sold and delivered. To this action

Lloyd & Pulliam vs. Wright, Griffieth & Co.

the defendants pleaded, that the contract to pay the $120 (if ever made) was obnoxious to the 17th section of the statute of frauds, no earnest to bind the contract having been given, nor part payment made or note or memorandum entered into.

Upon the trial of this issue the plaintiffs offered in evidence, the testimony of Jacob H. Wright and Edward Hyatt taken by depositions, going to prove the contract. To the reception of this testimony, the defendants objected on the ground that the contract sued on was within the 17th section of the statute of frauds, and the evidence offered did not take it out. The Court overruled the objection and admitted the evidence and defendants excepted.

Counsel for the plaintiffs having closed, the defendants, counsel moved the Court to dismiss the case on the ground that the contract sued on, which was an open account for cigars, sold by the plaintiffs, residing in the city of Baltimore, to the defendants, residing in the city of Atlanta, upon a verbal order was void under the 17th section of the statute of frauds. The Court overruled the motion and counsel for the defendants excepted.

The jury found a verdict for the plaintiffs for the amount sued for, and the defendant's counsel filed his bill of exceptions, assigning the above rulings of the Court as error.

GARTRELL & GLENN, for plaintiffs in error.

T. L. COOPER contra.

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

Under the proof, was this case within the 17th section of the statute of frauds?

The statute requires that the purchaser should "actually receive" the goods. And although goods are forwarded to him by a carrier by his direction, or delivered abroad on board of a ship chartered by him, still there is no actual acceptance

Oliver et al. vs. Williams.

to satisfy the act, so long as the buyer continues to have the right, either to object to the quantum or quality of the goods. Chitty on Contracts, 392; Story on Contracts, 381, 382,383; Acebal vs. Levy, 10 Bingham, 376; How vs. Palmer, 3 B. & A., 321; Lloyd & Pulliam vs. Wright, Griffith & Co., 20 Ga. Rep. 574.

The case of Dutton, 3 Bos. & Pull. 582; relied on by counsel for defendant in error was a mere question, as to what constituted a good delivery; the statute of frauds was not in the case. It consequently does not meet the question now presented. The decision there was, that a delivery of goods by the vendor, in behalf of the vendee, to a carrier, not named by the vendee, was a delivery to the vendee. That is, it was a good delivery to bind the contract, but not a sufficient delivery to take the case out of the statute of frauds, which requires, that the goods should be " actually received" to come within the meaning of the statute.

Judgment reversed.

SAMUEL OLIVER et al., plaintiffs in error, vs. AMOS A. WILLIAMS, defendant in error.

Where the defendant in ejectment takes another person on the land in dispute, rents him the premises, and after nailing up the cabin, the only building on the place, they retire together, charging the witness not to disclose the transaction; is the possession changed? Quere? Clearly it is not, if the whole affair be colorable only, and intended to avoid a suit at the instance of the plaintiff against the defendant as tenant in possession.

Ejectment and nonsuit, from Catoosa county. Decided by Judge TRIPPE, October Term, 1857.

Oliver et al. vs. Williams.

An action of ejectment was brought by the plaintiff in error, to recover a lot of land from the defendant in error. Upon the trial, the plaintiff, after the production of certain. documentary evidence, introduced the following witnesses:

Gray B. Lassiter, who testified, that in March, 1853, he went with McCutchin, the attorney of Samuel Rawlins, to see Amos A. Williams; McCutchin told Williams that he had come about the lot of land in question, in this suit, and asked Williams whether he was in possession of the lot; that if he was, he McCutchin should sue him. Williams replied, Mac, I have nothing to say, you can exercise your own discretion."

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Elijah Fitzgerald, testified, that he knew the lot of land that Williams was in possession in 1846 or 1847, and had either himself or by his tenants, continued in possession ever since.

In February 1853, Williams and Lively sent for witness, when they all went on the land together, and Williams put Lively in possession of it, having rented it for the year for $25. Defendant Williams is now in possession of the land. Joel Barnes went into possession of the lot of land in March, but was put out and Lively took possession as Williams'

tenant.

Joel Barnes, testified, that he entered on the land in March, 1853, as tenant of Samuel Rawlins. He was arrested and taken to town, and when he returned, his family and furniture had been turned out, and Williams was in possession of the lot.

Michael Dickson, testified, that the defendant Williams was on the land in 1839, and by himself or his tenants was in possession of and claimed the land as his own. Thomas Strickland as tenant of Williams, was in possession in 1852. Defendant Williams had cut and carried off from the lot considerable quantity of wood.

Thomas Brock, testified that soon after Barnes was turned out of possession in 1853, he was sent for as he was told by

Oliver et al. vs. Williams.

Lively, and Lively and the defendant hired him to take possession of the lot. Williams claimed the land as his own. He (witness) was hired to take possession of it, to keep Rawlins from getting it.

Plaintiff then closed.

Counsel for the defendant then moved the Court for a nonsuit, on the ground that there was no evidence that the defendant was in possession of the land at the time of the commencement of the suit.

Plaintiff's counsel insisted that there was such evidence, and that the plaintiff had the right to have the question of possession submitted to the jury.

The Court refused to submit the case to the jury, and granted a nonsuit, and to this decision of the Court, the plaintiffs excepted.

AKIN, appeared for the plaintiff in error.

HOOPER & WALKER, contra.

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

The only question in this case is, whether there was evidence offered by the plaintiff, as to the possession of the defendant at the time the action was brought, to take the case to the jury? The Court below held there was not; and granted a nonsuit, and that is the decision complained of.

There had been a previous suit between the same parties, respecting the same land, which was dismissed, October 1852. The present action was filed the 2d and served the 3d day of March, 1853; and the state of the facts existing at that time, was these: Williams, the person contesting the title of the plaintiff, had been claiming the land for years before the first case was commenced in 1844, and after that time. But acting probably under legal advice, he deemed it important not to be in the actual possession of the premises for the