Munn v. Pope , 2 Stew. 498 ( 1830 )

By JUDGE PERRY.

It is contended that the judgment should be reversed, 1st. Because the Court below permitted the defendant to prove the bad quality of the ■gin; 2d. Because the Court below permitted the defendant to prove repairs done to the gin; and 3dly. Because the Court permitted the defendant to prove that the old gin was taken in part payment for the new one.

As to the first ground taken by the plaintiff in error, I hold it to be a well settled.rule of law, that where a party seeks to recover the value of an article sold, all testimony is admissible on either side, which tendsto prove or ascertain its true value. The plaintiff was therefore bound to shew what the value of the gin was; this he did, by proving that the usual value of gins per saw was four dollars. This testimony would have authorized a recovery for that amount, had the defendant acquiesced. But as the value ■of the gin was the matter in dispute, it was competent for him to shew by proof that the gin was of less value than that fixed as the usual price of first rate cotton gins. The testimony was therefore properly received.

The second point taken by the plaintiff is involved in the first, inasmuch as it was necessary to the usefulness of the gin to have it repaired, it was lessened in value, as proved by the plaintiff, to the extent of the repairs made.

The third question presents the inquiry, if, under the general issue, any thing else besides money, can be a payment? I hold it to be an incontrovertable principle, that whatever a party agrees to receive in payment of a debt, will be considered as such, and can be given in evidence under the general issue. The plaintiff, then, by his agreement, promised to take the defendant’s old gin in part payment for his new one; so far as the value of the old gin could be ascertained, it was a good payment for so much. The Court are unanimous in the opinion that the Court did not err in admitting the defendant’s testimony.

Judgment affirmed.