Foster v. Leeper & Menafee , 29 Ga. 294 ( 1859 )

— Lumpkin J.

By the Court.

delivering the opinion.

[1.]Was Foster a competent witness for the plaintiffs ? We hold that he was upon the authority of the Central Railroad & Banking Co., vs. Hines, Perkins & Co., (19 Ga. Rep. 203.,) with which we are satisfied.

[2.] Was the Court right in excluding as testimony from the jury, a copy of a letter, purporting to have beén written by defendant to Foster, the 12th of March, 1857? We think so; for this reason, amongst others, that it did not appear that the original was ever received by him, or even that it was sent.

[3.] Does this case come within the statute of frauds ? We think not. The letters of the defendant contain a sufficient acknowledgement of the contract.

[4.] The request asked of the Court was not law, even • admitting that the bacon was to be delivered, and paid for,, between the 2Cth of March and the 1st of April, 1857. If the plaintiff called on the 18th of March to get the bacony in accordance with the wishes of the defendants, as communicated in their letter, and was informed by them that they could not comply with their contract, for that they had sold the bacon bought for him to others, that dispensed with any future or further demand or offer to comply with their contract by Foster, & Co.

[5.] Nor do we think the recovery excessive. Defendants proposed to sell Foster sides at 12-J or 13 cents, and that is the best proof of what bacon was worth at the time. And the clerk of defendants testifies that the difference between the price of sides and the hog round, was from 1 to 3^-cents. This will leave a margin sufficiently broad to cover the damages, and that too after deducting the expenses of furnishing casks and packing.

[6.] The evidence, we think, was ample to support the verdict. This isa plain case; the price of bacon rose, and the defendants considered it better to risk a recovery in damages rather than comply with their contract. The jury-likely did right.

Judgment reversed.