LEE CO. GA
COURT RECORDS
 

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; at Macon, part of June term 1859, Atlanta, August term 1859, Milledgeville & Athens, November terms 1859, and Savannah, January term 1860" by Y. Martin; ("Georgia Reports") Vol.29, pgs.166 to 183, Macon, June term 1859 (California State Law Library, Sacramento, 12/2003 and 1/2004; extract)
      LINDSEY H. DURHAM and Wife, plaintiffs in error, vs. SETH K.
TAYLOR, executor, defendant in error; Supreme Court of Georgia; 29 Ga. 166; July, 1859, Decided.
      All the facts necessary to a full understanding of the points adjudicated in this case are embodied in the following opinion of the court.
      (opinion) Did the court below err in refusing the motion for a new trial? We think so; we think that some of the grounds of the motion were good, which these are will be seen as the grounds are disposed of.
      The first ground was as follows: "The court erred in charging the jury that the proof necessary to reform a marriage contract must be indubitable; and, in the further part of the charge, in saying that it required irrefragable proof." Proof that is sufficient to satisfy the jury beyond a reasonable doubt, is as much, we think, as is necessary (MAD: more not copied here) ... This ground then, we think, was good.
      The second ground was as follows: "In charging that if the marriage contract is reduced to writing before marriage, containing the intention of the parties, it can not be altered or amended afterwards under the statute of frauds." It is certainly true that the writing, if it expresses the "intention" of the parties, will be free from liability to be altered or amended; but the statute of frauds was not needed to give to it this exemption; there never was any law allowing a writing to be so "altered" or "amended" as to make it cease to speak the "intention" of the parties to it; and that would be the effect of any alteration or amendment of a writing, if the writing expressed the "intention" of the parties. We see nothing amiss in this ground as the ground stands expressed.
      The charges in the third, fifth and seventh grounds are nearly related. Those three grounds, therefore, will be taken up one after another.
      The charge contained in the third ground amounts to this proposition: that a written agreement is not to be corrected by any verbal agreement made prior to it, or contemporaneous with it. Is this proposition true? (MAD: some text omitted here) ... The bill in the present case is "an action" brought, first, to correct a written marriage contract by the verbal contract which preceded it; and, secondly, to enforce the written contract when corrected by the verbal. The written contract, when thus corrected by the verbal, will, in reality, be only the verbal. Therefore, the action is, in reality, an action to enforce the verbal. Consequently, it is an action which the statute says shall not be brought, even though it might be true that the case were such that not to allow it to be brought would be to permit the defendant or his testator to perpetrate a fraud on the plaintiff. However, it is not true that the case is such a case as that, and therefore the case is not excepted from the statute, even if that case is. This is their argument. ... (MAD: some paragraphs omitted here)
      Do they not say that these cases of marriage contract are often the very ones which marriage, as part performance, ought to take out of the statute? In the other cases the injured party if he has parted with his property in performance of the contract and that fails may recover it back; but in these cases if the wife has parted with her property and the contract fails that property is gone; the moment the contract gets out of the way the marital right of the husband steps in, and swallows it all at a mouthful.
      Nay, all of her rights are gone; she has become a married woman, and thus has merged in her husband; and his conduct, in repudiating the contract, is not even a ground to her for demanding a divorce. Indeed, a divorce, if she could obtain one, could not restore her to all she was, if it could to all she had, before the marriage. Great and irreparable is the mischief if the contract be held void. I myself, therefore, much doubt whether, in cases of this kind, marriage is not such a part performance as takes them out of the statute. (MAD: some paragraphs omitted here)
      These are enough; they show, if decisions can show it, that the statute of frauds does not mean to say that a written marriage contract or other of the contracts within the fourth section of the statute is not to be reformed and corrected by the verbal contract which preceded it whenever not to allow the correction would be to permit one of the parties to perpetrate a fraud on the other. They show, in short, that fraud takes any case out of the statute. On the question, what will, or will not, make a case of fraud, there will, I admit, be a difficulty in reconciling all the decisions. But once grant that the case is a case of fraud and they all agree that it is out of the statute. (MAD: some text omitted here)
      We think, then, upon the whole that a written marriage contract, or any other of the contracts referred to in the fourth section of the statute of frauds, is subject to be corrected by the verbal contract which it undertook to reduce to writing, in every case in which not to allow the correction would be to allow one of the parties to the contract to perpetrate a fraud on the other. We think, that the statute is to be so construed as not to prevent the correction in such a case. Consequently we do not yield to the first branch of the argument of the defendant's counsel.
      Secondly, ought the second branch of that argument to prevail? That branch was that the present is not a case in which refusing a correction of the written contract by the verbal would be allowing Duncan to perpetrate a fraud on Mrs. Bryan.
      What then is the present case, according to the pleadings and to the proof? According to the bill, the case, or at least so much of it as is pertinent here, is, substantially, as follows:
      [pg.176] A. B. Duncan proposed marriage to Mrs. E. A. Bryan, and, to induce her to accept the proposition, promised her to convey, to her separate use, the whole of her negroes. He took a list of the negroes to be used in the drafting of the contract; and on the next day he presented to her a paper for execution which he falsely represented to be a "consummation of the contract." This paper was read to her by Harry Herrington in presence of him, Duncan. Herrington advised her that the paper was "in violation" of the contract. Thereupon Duncan interposed and said "that Herrington was mistaken, that said paper was drawn up by a skillful lawyer, and" "was precisely in accordance with the agreement, and did settle the whole of the negroes upon" her, "as her sole separate property, and to no one else; called upon the said Herrington and his wife to bear witness that if" Mrs. Bryan "would consent to sign it with him and unite with him in marriage he" "would afterwards execute just such a settlement as would suit" her, "whenever she should be satisfied that the one then presented did not carry out their agreement." She, relying on the statement that the paper did settle upon her the whole of her negroes, to her separate use, and her fears being appeased by Duncan's promise that if the paper did not convey the property to her separate use, whenever this should be ascertained, he would execute any other conveyance that would convey it to her separate use, signed the paper, and a few moments afterwards married him. The paper was, in fact, a violation of the agreement in these particulars, viz.: it gave Duncan a life estate in the negroes; it gave him "a title in fee" to them, on condition that he survived her, and she left no children of the marriage; it conveyed "a title in fee" to the children of the marriage, surviving her, reserving an estate for years, to Duncan; it conveyed the property, to the children of the marriage, jointly with her, to vest absolutely at the death of Duncan; that she was to have the property, in fee, only upon condition that she survived Duncan and no children of the marriage survived her. The prayer in effect is that the written contract may be reformed and changed, so that it shall accord with "the contract or original agreement;" and that the complainants may have the benefit of it as so reformed and changed.
      This is the case, according to the bill.
      The proof was such that it would have authorized the jury to believe the case made by the bill true.
      This then being the present case, is it true that it was a case in which refusing a correction of the writing would not have been permitting Duncan to perpetrate a fraud on Mrs. Bryan?
      And we think that it is not true -- supposing the facts to be, as stated in the bill. We think that refusing the correction of the writing would be to sanction a fraud perpetrated by him on Mrs. Bryan. We think that he was guilty of actual fraud, towards her. He not only gave her his own word that the writing truly expressed the contract, but he made her believe that he had the word of a skilful lawyer, that it did. Not content with this, he called upon the persons present -- persons who were her near relations, and her trusted friends -- to bear witness, that if, after all, the writing did not truly express the contract, and that should afterwards be discovered, he would correct it, and make it truly express the contract. He had her love, and therefore he had her confidence, almost as much, perhaps, quite as much, as if he was already her husband. Plied in such a way, by such a person, she signed the writing. That did not, by a great deal, truly express the contract. There was nothing in the conduct of Duncan, afterwards, going to show that he thought the writing expressed that contract. If these things are true, Duncan was, we think, guilty of procuring Mrs. Bryan's signature to the writing, by actual fraud -- by wilful and intentional deceit.
      At least, he was guilty of constructive fraud. This conduct of his, was his conduct which had a strong tendency to deceive, if it was not intended to deceive, and it did deceive. ...
      So much then for the argument of the defendant's counsel in both its branches. We think it not sufficient to show that the case is within the statute of frauds. We think that fraud takes a case out of that statute, and that there is fraud in this case.
      Deeming this argument invalid, we of course have to regard it as not sufficient to support the charge of the court, which, as we have seen, went in effect, this length; that a written marriage contract was not to be corrected by the verbal one, which preceded it, in any case, not even in the case in which, not to allow the correction to be made, would be, to allow one of the parties to practice a fraud on the other. No other argument occurs to us which, we think, is sufficient to support that charge, therefore, we think it erroneous.
      The next ground to be considered, is the fifth. This ground consists of a charge of the court, and that charge, if not the same, in substance, as the charge in the third ground just considered is, in effect, as follows: That a written marriage contract, if it is "understood" by the parties to it, is not subject to be changed by evidence, that the man, at the time of its execution, verbally promised the woman that if she would execute it he would afterwards make it satisfactory to her. Supposing the charge to have been this, was it right? ... (MAD: some text omitted here)
      We are not prepared to say, then, that this charge was right; but, even if it was right, we think it should have been accompanied with a caution to the jury, that, if they believed that Duncan assured Mrs. Bryan that the writing was the same as the contract agreed on, and was the work of a skillful lawyer, and she signed it in reliance on this assurance, they ought not to believe that she did understand the writing.
      This, of course, is said on the assumption that what the bill says as to what was the contract agreed on, is true.
      The next ground to be considered is the seventh; which consists of a charge of the court, to this effect, that if, at the time when the writing was executed, Duncan represented to Mrs. Bryan that it gave to her what it distinctly declared, she should not have, the representation is "inadmissible," to "contradict" the writing, unless she was "deceived as to what it contained." Was this charge right?
      Even granting that Mrs. Bryan was not mistaken as to what the writing contained, yet, according to Pember vs. Matthews, and the other cases just referred to, she had the right to rely on the promise of Duncan, (if there was one,) that if the writing did not contain the contract, he would make it do so.
      Besides, if Duncan assured her that the writing was the same as the contract agreed on, and that it was the work of a skillful lawyer, and if she signed the writing in consequence of this assurance, the jury ought to have concluded that she was "deceived" as to the contents of the writing. And this the court ought to have told the jury, along with the other charge, even if that charge was legal. But we do not say that it was legal.
      We, then, think that this charge was erroneous. (MAD: text omitted here about the fourth and sixth grounds)
      We find nothing in the evidence to authorize the charge stated in the eighth ground. We find nothing in the evidence going to show that Mrs. Duncan bestowed her property on her husband.
      In respect to the ninth ground, it is sufficient to refer to what has been said of the third, and fifth, and seventh grounds.
      The tenth ground was as follows: "The court erred in charging the jury that if the testimony showed that the provisions of the marriage contract, and the will, were explained to Mrs. Duncan in the court of ordinary; and also, that after the explanation, she expressed to the witness, that she was satisfied with the arrangement of setting aside the contract, and made no complaint about it not being in accordance with the original contract, that constitutes a circumstance, to show it was in accordance with the original contract."
      There is nothing in the evidence to show that the provisions of the marriage contract, and those of the will, were explained to Mrs. Duncan. It is true, that it appears in the evidence, that, in the court of ordinary, when the will was propounding for probate, General Morgan, in the presence of Mrs. Duncan, stated: "that the contract and the will gave her about the same things" -- but this is no explanation of what the contract gave her, or, of what the will gave her. A part of her case as stated in her bill, is, that Duncan told her that the contract was drawn by a skilful lawyer, and gave her the whole of her negroes to her separate use; and that she relied on this statement. Now, if she understood General Morgan to mean that the will, too, gave her all of her negroes, her assenting to the abrogation of the contract was not even a "circumstance," to show, that the contract as written, was "in accordance with the original contract." And for aught that appears, she might have so understood him.
      At any rate, the court ought also to have told the jury that if Mrs. Duncan's election to take under the will was a "circumstance" to show that the written contract was correct, it was a very slight one, as there were so many other supposable motives for her conduct in making the election.
      The eleventh charge was as follows: "The court charged the jury that if the complainant, Mrs. Duncan, consented to the cancellation of the marriage contract, in the court of ordinary of Lee county, and, with knowledge of her rights, elected to take under the will of Alexander B. Duncan, and the parties acted under it, she then can not recover in the suit, or have the contract reformed."
      This charge, we think, needed explanation -- needed particularizing, as thus: that if Mrs. Duncan had the right to repudiate the contract as written, and to insist on what she says was the contract agreed on, and if she knew this, then, if she elected to take under the will, and the executor had acted on that election, in such a way, that he, or the estate, would be injured, unless she were held bound by her election, she was bound by that election; otherwise by it she was not bound.
      It was argued, that if she was allowed to claim under the contract, the effect would be hard upon the two children by Duncan, as in that case, she would, by the contract, get all of her own property, and, by the will, get also a third of his property. But, we suppose, that if she elects to take under the contract, she will deprive herself of the right to take anything under the will. This, however, is a point not strictly in the case, and, therefore, it is not decided.
      The twelfth ground was, that the verdict was not authorized by the evidence. We think it best not to express an opinion on this ground.
      The thirteenth and last ground involves the same point as the twelfth. We dismiss it, therefore, with a single remark, viz.: that the charge stated in it seems not to be consistent with some of the previous charges.
      Judgment reversed and new trial granted.
 

"Reports of cases in law and equity, argued and determined in the Supreme Court of the state of Georgia; at Macon, part of June term 1861, to Milledgeville, November term 1863, inclusive" Vol.XXXIII, by George N. Lester, Reporter; ("Georgia Reports") Vol.33, pgs.312 to 315, Macon, June term 1862 (California State Law Library, Sacramento, 1/2004; extract)
      MARY DUNCAN, plaintiff in error, vs. SETH R. TAYLOR, executor, defendant in error; Supreme Court of Georgia; 33 Ga. 312; June, 1862, Decided.
      Motion, in Terrell Superior Court. Decided by Judge PERKINS, at May Term, 1862.
      At said term, Mary Duncan was, on motion, made a party defendant to the cause of Lindsey H. Durham and wife, against Seth K. Taylor, executor of A. B. Duncan, and guardian of the minor children of A. B. Duncan, and her counsel then moved the Court to pass the following order: It appearing to the Court that in accordance with an agreement entered into by the parties in the above case, and a decree of this Court taken at the May Term, 1860, under said agreement, by which it was ordered by the Court that the will of said A. B. Duncan should be carried out by the executor, and a division of the estate of said A. B. Duncan should be made as directed by the will, which division has been made, except the bequest of $1,000, which deceased, by his will, directed his executor to pay over to his mother, Mary Duncan; it is therefore ordered that the executor pay over said bequest to said Mary Duncan.
      The claim to the bequest was based on the following purported nuncupative will of A. B. Duncan, a certified copy of which was produced to the Court, unaccompanied by the order of the Court of Ordinary, admitting it to record:
      GEORGIA, LEE COUNTY: We, Henry Herrington, Isaac Welch, and Thomas S. Tuggle, were present on the 13th October, 1851, at the residence of A. B. Duncan during his last illness, of which he died during the night of the 15th, at which time, viz., on the 13th, in perfect possession of his mental faculties, he called upon us to take notice of what he was about to say. He now wished us to understand that his will and desire was, that from the love and affection he bore for his mother, Mary Duncan, he wished her to be paid $1,000 out of his estate, notwithstanding his written will, and also that my wife, Ellen Duncan, shall be an equal sharer with my children in all my estate, by putting certain property she holds under a deed into hotch-pot. On the night of the 15th, after making the above request, he breathed his last. Signed by the three witnesses.
      A certified copy of the prior written will was also before the Court, but in it no mention of this legacy is made.
      The consent decree referred to in the motion is as follows: In accordance with an agreement entered into by the parties, we decree that the portion of assets and property of Blackshear Byon, deceased, which was not reduced into the possession of A. B. Duncan during his life, and which has been reduced into possession by L. H. Durham from A. H. Hansell, the administrator thereof, consisting of the following negro property, (describing the negroes,) as well also as all other assets received by him from A. H. Hansell, administrator, shall be held and enjoyed by said Durham, free from account, and that all the property, both real and personal, as well as that which was brought into the marriage by said Ellen A. with said A. B. Duncan, as also all the estate of A. B., all of which is now in the hands of Seth K. Taylor, executor, shall be distributed into three equal parts in accordance with the will of said A. B., by five commissioners to be appointed by the Chancellor, who shall proceed, in compliance with the statute, to make distribution by the first day of January next, and that the balance of money found to be due by Seth K. Taylor as executor, after allowing him all legal charges, shall likewise be divided in the same manner. That one-third part thereof shall be paid over to L. H. Durham in trust for his wife, Ellen A. Durham, as her sole and separate estate, free from all contracts of her present or any future husband, as though she were a feme sole to be disposed of as she may direct, by will or otherwise, and the remaining two-thirds be distributed to Alexander B. and Mary E. Duncan, the minor children of A. B. Duncan, deceased, and that this decree, when complied with by Seth K. Taylor, executor, shall discharge him from all liability as administrator of A. B. Duncan, deceased, and shall be a full cancellation and discharge of all the rights of complainants to set up in said bill, and as legatees under the will of said A. B. Duncan; that the appeal from the Court of Ordinary caveating said will be dismissed, and that said Seth K. Taylor, executor, go on in the legal execution of said will.
      The Court refused the order, and counsel for movant excepts.
      By the Court. -- JENKINS, J., delivering the opinion. The record does not disclose the reason upon which the Court below refused to pass the order or judgment sought by the plaintiff in error, but a sufficient one may be found without either a long or an astute search. Such an one lies upon the surface.
      The bill upon which plaintiff in error sought to engraft the order was filed to settle certain matters in controversy, between Ellen A. Durham and her husband, of the one part, and the executor of her former husband, of the other, in which this plaintiff in error had no interest. She was not originally a party. A decree predicated upon an agreement between the parties, made pendente lite, was rendered, adjusting all matters in controversy. Among other things, it was decreed that the executor (defendant) proceed to execute the will of his testator.
      After this decree had been rendered and partially executed, the plaintiff in error came into the Court below and asked to be made a party defendant to the bill. No one already a party seemed to feel interest enough in the application to resist it, and it was ordered accordingly, just two years after what purports, by its terms, to be a final decree. Having thus secured a place in the record, she forthwith moved the Court for a peremptory order, requiring the executor to pay to her a legacy, claimed under a nuncupative will, certified by the Ordinary to be on record together with a prior written will; and it is this order which the Court below refused to grant, to which the plaintiff in error excepted.
      It does not appear that the bill contained any allegation relative to her claim. Nor does it appear that she filed an answer, in the nature of a cross-bill, setting it forth, nor indeed any answer at all. Though nominally a party, she was still a stranger to the pleadings. She insists that under the direction, that the executor proceed to carry into effect the will, she has a right to enter the Court, at this side door, prove her legacy, and obtain a judgment for its payment without more ado. But this general direction must be understood as having reference to the parties litigant, and to the allegations made in the bill. The will requires that the testator's debts be paid, and if the legatee's application be allowable, upon the same reasoning, any creditor of the testator might engraft upon this decree a summary process for the collection of his debt.
      If the claim be not contested there is no necessity for a judgment. If it be pleadings, mutual altercations between the parties, resulting in an issue, either of law or fact, are indispensable. But here, without any pleading, showing an agreement upon certain facts, the Court was asked to ignore the jury and pronounce a judgment, as upon an issue of law resting in parol. If there be any such practice in Chancery we are not aware of it. Let the judgment be affirmed.
 

"Reports of cases in law and equity argued and determined in the Supreme Court of Georgia at Atlanta, in parts of January and July terms 1871" by N.J. Hammond; Georgia Reports, Vol.43, pgs.297 to 299 (California State Law Library, Sacramento, 2/2004)
      G. M. STOKES, plaintiff in error, v. DUNCAN & JOHNSON, defendants in error; Supreme Court of Georgia; 43 Ga. 297; July, 1871, Decided.
      New trial. Before Judge Clark. Lee Superior Court. May Term, 1871. This case is sufficiently reported in the opinion.
      [headnotes] It appeared, from the record, that Stokes, a country merchant, had, under a contract with a neighboring planter, advanced supplies and money to make a crop, and he was to have control of the same, and to be first paid from the proceeds; that, during the summer, Duncan & Johnson, commission merchants at Savannah, also advanced supplies and money to the planter, with the notice of Stokes' claims, it being understood that cotton would be sent to them, at Savannah, for sale, out of which they would be paid, all the parties believing that a crop of three hundred or three hundred and fifty bales would be made. On October the 15th, after thirty-nine bales had been sent to Duncan & Johnson, Stokes wrote to them a letter, stating that the planter wanted some money and desired his cotton sold as it arrived, unless they would advance upon it and hold it for a better market, and adding that, as the planter owed both of them, it was proposed, as a mutual arrangement, that, as any cotton was sold, Duncan & Johnson should pay its expenses and the balance should be divided between them, to-wit: Duncan & Johnson and Stokes, on their several debts. Afterwards, other cotton was sent to Duncan & Johnson, and they sold the whole, say eighty bags, paying expenses and sending half the proceeds to Stokes and retaining half on their debt, which, at the time, was thus discharged. Duncan & Johnson, expecting further shipments from the expectation of the crop, and from their understanding of Stokes' letter, made further advances to the planter. Stokes, finding the crop would be only one hundred and seventy-five bales, instead of three hundred or three hundred and fifty, by direction of the planter, and to save himself, sent forward the balance of the cotton to other Savannah merchants, and sold the same and took the whole of the proceeds on his own debt:
      Held, That there was nothing in the letter of Stokes, of October 15th, to bind him to send forward the whole of the crop to Duncan & Johnson, and it was error in the Court to charge the jury that he was so bound.
      Held, further, That, under all the facts as set forth in the record, the verdict was sustained by the evidence, and the Court erred in granting a new trial.
      (Lochrane, Chief Justice, was absent when this cause was heard.)
      [opinion] McCAY, Judge. This case turns entirely upon the evidence, and upon the construction of Stokes' letters. We do not think there is anything in Stokes' letters binding him to send to Duncan & Johnson the whole of the cotton crop of Hunt and Bryan. We can easily see how the parties might have so expected, and we do not doubt but that Stokes himself so expected.
      But this was a common expectation, growing out of the confidence of all the parties, that the crop would pay everything and leave Hunt and Bryan a surplus for their own use. This expectation cannot be derived from any agreement by Stokes, or any promise of his in his letters. The evidence of Mr. Johnson, taken literally, it is true, establishes this as well as that of Mr. Duncan, but the latter says he was not at home during the year, and professedly states nothing on his own knowledge, while Mr. Johnson, though he states and repeats, over and over again, Stokes' agreement, at the same time states that he derives that agreement solely from the letters he produces, admitting that there was nothing but these to base his statements upon. On looking carefully at these letters we feel satisfied that they contain no such agreement, and we will not disturb the verdict of the jury.
      It is not our province to judge of the facts of a case in the teeth of the verdict of a jury, unless the verdict and the facts be so antagonistical as to make a case of prejudice, mistake, etc. True, the Judge has, in this case, granted a new trial, and, as a general rule, we will not interfere with his discretion in such cases. But we do not think the verdict in this case was contrary to the evidence, and the Judge doubtless acted mainly upon his construction of the letters. As we have said, we do not think there is anything in the letters binding Stokes to the extent supposed by the Judge, and so believing, we think the verdict is with rather than against the weight of evidence.
      Judgment affirmed.
 

"Reports of cases in law and equity argued and determined in the Supreme Court of Georgia at Atlanta, in parts of July term 1872 and January term 1873" by Henry Jackson; Georgia Reports, Vol.47, pgs.593 to 595 (California State Law Library, Sacramento, 2/2004)
      DUNCAN & JOHNSON, plaintiffs in error, v. GILBERT M. STOKES, defendant in error; Supreme Court of Georgia; 47 Ga. 593; January, 1873, Decided.
      New trial. Former recovery. Before Judge Clark. Lee Superior Court. November Term, 1872.
      Duncan & Johnston brought case against Gilbert M. Stokes, alleging that by his fraud and deceit in inducing them to advance money to Hunt & Bryan, a firm engaged in the planting business, alleged to be insolvent, he had injured and damaged them in the sum of $5,000.00.
      The defendant pleaded former recovery. The plaintiffs had at a former term of the Court brought an action of complaint against defendant for the moneys alleged to have been advanced by them to said firm of Hunt & Bryan, which resulted in a verdict for the defendant; that a new trial was awarded by the Court, which decision was reversed by the Supreme Court: See 43 Georgia Reports, 297.
      The evidence is unnecessary to an understanding of the decision.
      The jury returned a verdict for the defendant. The plaintiffs moved for a new trial upon the following grounds, to-wit:
      1st. Because the Court erred in charging the jury as follows: "The defendant having filed and set up a plea of former recovery in this case, and it appearing by evidence that this is the same transaction, and the evidence being the same that was used in the other case pleaded, upon which it is admitted there was a recovery for the defendant, and is insisted because the other case was an action ex contractu' the judgment therein does not bar the plaintiffs from maintaining this action which is for a tort. I charge you, that if you believe this is the same transaction, and upon the same evidence embraced and used in the other case, then you ought to find a verdict for the defendant."
      2d. Because the Court erred in charging the jury as follows: "That if the plaintiffs in the other case had the right to sue for a tort, and instead of so doing waived his tort and sued in assumpsit, he is barred by his election, and if he lost in that case, he cannot maintain this action."
      The Court refused a new trial, and plaintiffs excepted upon each of the grounds aforesaid.
      (Montgomery, Judge, was providentially prevented from presiding in this case.)
      [opinion] McCAY, Judge. The first action in this case was assumpsit, or rather complaint under our statutory forms, upon an open account. In that suit the plaintiffs undertook to show by certain letters and acts of defendant that he had promised, or that from what he had done the law implied a promise to pay the plaintiffs' advances to Hunt & Bryan. The jury found against them, and this Court upheld the finding. They now bring a suit in tort, alleging that the defendant, by his deceit, has damaged them a certain amount, and they offer precisely the same evidence they used on the former trial to sustain their declaration. Is the judgment in the first suit a bar? We think it is. The only ground upon which it can be contended that the evidence sustains the charges in the declaration in the last suit is, that it proves that the defendant, by his acts or letters led the plaintiffs to believe he would pay the advances to Hunt & Bryan, that is, that by his false statements and acts he misled the plaintiffs into that belief.
      Now it does not and cannot make any difference whether a promise is in words or acts. If the defendant did, or said, or wrote anything from which the plaintiffs had a legal right to infer that he had undertaken to pay them, that would be a promise, and if not an express promise it would make such a state of facts as that the law would imply a promise. In other words, if in this evidence there is anything from which it is proper to infer that the defendant had led plaintiffs to believe he would pay the advances to Hunt & Bryan, it would have been the duty of the jury to find for the plaintiffs in the first suit. But after hearing all this evidence the jury found for the defendant, and this Court affirmed the judgment. It follows, therefore, that the judgment in the first suit is a bar to this. The evidence introduced, if it shows that the defendant, by his acts, words or writings, led the plaintiffs, by his deceit, to believe he would pay their advances to Hunt & Bryan, would have entitled the plaintiffs to a verdict in the first suit, since it would have shown either an express promise or a state of facts from which the law would imply a promise. But on this question of the effect of the evidence a jury has passed. We think this is the rule laid down by the authorities. The right of the plaintiff to bring a second suit depends upon whether the jury in the first case passed upon what he now claims to be the effect of the evidence. If it did the verdict is a bar. We think, therefore, the Court was right, and affirm the judgment.
      Judgment affirmed.
 

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