McLendon v. Wilson, Callaway & Co.

1. Where a settlement was made on the basis of an abstract of account taken from plaintiffs’ books, and not by reference to the books themselves, there was no error in allowing one of the plaintiffs to testify that such abstract was correct. 2. There was no error in allowing one of the plaintiffs, who conducted the negotiations with defendant, to testify that the drafts were given in final ■ settlement of the account between the parties so far as he knew, defendant •having stated that he signed the drafts with the understanding that any . errors in the account should be subsequently corrected. 3. Where the drafts were drawn by the defendant upon the plaintiffs, and acceptance was therein waived, parol testimony was admissible to show the circumstances attending the making of the same, and the reasons for such waiver. 4. Evidence that defendant stated his intention not to pay the drafts shortly after signing them, and in the absence of the plaintiffs, was properly rejected. 5. Where, to an action on such drafts,' previous payments of usury were pleaded as a set off, it was not error to charge the jury-that such set-off . should be allowed if pleaded within four years from,date of last payment.

Evidence. Negotiable instruments. Interest and usury.' Statute of limitations. Before Judge Buchanan. Troup Superior Court. November Term, 1875. The following, taken in connection with the decision, sufficiently reports this case: • McLendon purchased cotton and shipped it to Wilson, Callaway & Company to be sold; the latter advanced money to him for that purpose. Defendant shipped consignments of cotton to plaintiffs, some of which' were not sold immediately. The evidence was conflicting as to whether any instructions were given by defendant in regard to its sale, and whether he was injured by the delay in selling. Two members of plaintiff’s firm, Wilson and Orme, went to defendant’s house to effect a settlement with him, and the drafts sued on were then given. Defendant filed a plea on March 4th, 1869, wherein healleged various overcharges and errors in the account on which the drafts were founded, and that it was understood between the parties, at the time of signing the drafts, that any error in said account should be corrected. The plea also alleged that “in another transaction with said firm, in account rendered, there are manifest errors of interest overcharged.” An amended plea was filed November 21st, 1872, in which, it was alleged that plaintiffs had advanced to defendant $15,000 00; that he had placed in the hands of Orme, on November 27th, 1867, $17,700 00 worth of stock in the Atlanta and West Point Railroad Company, which was to be sold and the proceeds placed to his credit, so as to prevent interest from accumulating against him; that plaintiffs had held said stock till it depreciated in value, before selling it, and that the plaintiffs caused him to pay interest at the rate of one and a half per cent, per month. A statement of these payments was made, (the last being dated May 7th, 1868,) and a set-off was claimed therefor, amounting to $1,750 00. On the trial, defendant testified, substantially, as follows : The payments of usurious interest were as alleged in his plea ; also the errors in the account of plaintiffs. Wilson and Orme came to defendant’s house to effect !a settlement; defendant refused to settle, alleging errors in the charges; they went over a number of accounts, most of the time in defendant’s presence. All three started to defendant’s office; on the road he and Orme walked together, Wilson walking ahead; Orme urged him to sign the drafts, and stated that any errors in the account should be corrected afterwards; with this understanding defendant agreed to do as requested. Arrived at the office, he told Wilson that he would sign the drafts, and did so. Did not examine them carefully; supposed they were in the usual form. Defendant offered to prove by John S. Johnson that soon after he had signed the drafts, he stated that lie had signed them because Orme promised that any errors should be corrected ; that the account was outrageous, and he did not intend to pay it. This evidence was rejected. R. T. Wilson testified, in brief, as follows: Conducted the settlement with defendant. Hearing that the latter was dissatisfied with the account, went to his house in company with Mr. Orme, another member of plaintiffs’ firm. Stated to him that they had come to effect a settlement. He replied that the charges were excessive. Witness, thereupon, proposed to examine the account, item by item, and promised to correct any error which defendant should point out. They made a thorough examination of the account; at the close of it defendant expressed himself satisfied, and agreed to sign t'he drafts. They afterwards went to defendant’s office, he and Orme walking a little behind witness, and the drafts were there signed. Knows nothing of any agreement to correct errors afterwards. Excepting a transaction between Orme and McLendon, which had already been settled by those parties, the drafts were given in full settlement of all accounts between plaintiffs’ firm and defendant, so far as witness knows. [Objected to by the defendant.] The abstract of accounts from the books of plaintiffs, which was used in the settlement, was correct. [Objected to by defendant.] Acceptance was waived in the drafts at the special instance of witness. The object of the waiver was that witness wished to discount the drafts at bank, and make defendant primarily liable thereon, as drawer, instead of plaintiffs, as acceptors; and further, that witness believed defendant would use greater diligence in paying them if he were first liable. [Objected to by defendant.] W. P. Orme testified that he loaned defendant $15,000 00 on behalf of the firm; that defendant gave notes therefor, and placed in the hands of witness certain railroad stock to be sold and the proceeds applied to the debt; that stock was declining, and at defendant’s request it was not sold and his notes were renewed. Finally it was sold and credit given him therefor; there is a balance of $311 00 due defendant on the transaction. Denies agreeing to correct errors after drafts should be signed. The jury found for the plaintiffs $4,370 57. Defendant moved for a new trial on the following, among other grounds: 1st. The rulings as to the evidence stated above. 2d. Because the court charged, among other things, that if the defendant made payments of usurious interest, he is entitled to set-off the usury against the plaintiffs’ claim, provided that it was pleaded within four years from the date of the last of such payments. * The motion was overruled, and defendant excepted.