Heinkin & Palmore v. Barbrey , 40 Ga. 249 ( 1869 )

McCay, J.

1. On the trial of this case in the Court below the defendants offered as a witness one Jackson, who swore that he was their agent, at Cuthbert, to ship cotton to them in New York. He stated, further, that after the defendants had sold the cotton, and Barbrey had objected to it, as contrary to the agreement, Barbrey had directed him to write to defendants, and that he had written a certain letter, by Barbrey’s direction. This letter was then offered in evidence; that part of the letter pertaining to the matter in dispute, was as follows: “That he, Barbrey, would have been satisfied had the cotton brought sixteen and a half cents per pound.” This letter was objected to and ruled out by the 'Court.

We are not sure that the evidence, as offered, proves that Barbrey ever made this statement. Jackson does not say in his parol evidence exactly what Barbrey did say, nor does it anywhere appear that Barbrey did in fact say this. All, we have is the letter whiph Jackson wrote to his principals, in New York. It is true, he says he wrote by Barbrey’s request, or direction, but it must be remembered that Jackson was the agent of the New York men, and we doubt much if his letter to them is evidence of what Barbrey said. In his parol statement of what Barbrey told him, this statement is not to be found. But admitting that Barbrey made the statement, is it any evidence? The proof of the contract, that the New York house was to keep the cotton till March, is overwhelming. Jackson, the agent, admits it in terms, and Barbrey swears it positivelyindeed, there is nothing in the record casting the least doubt upon that fact. Nor does this statement, claimed to be Barbrey’s, at all tend to raise any such doubt. It might well be that the contract existed, as proven by Jackson and by Barbrey, that the defendants had violated it, and yet Barbrey might have said, that had they sold the cotton at the full market price, on the day of actual sale, he would have been satisfied. Evidently the meaning is, they have not oüly not kept the contract, by keeping the cotton'till March, but they have sold it for less than the market price, on the day of sale. He says he would have been .satisfied had they sold it so and so. They-did not sell it - so and so. Even if the proof had shown that, in fact, they had sold the cotton for the very price Barbrey, by the letter, said he would have been satisfied with, yet Barbrey has a right to stand on his contract, and he is not bound by any offer to take less than its terms, unless the parties had acted upon it. At best, it was an offer of compromise and is not evidence against Barbrey. . ,

2. The affidavit in this case claimed $980 88. The declaration filed, also, claimed this amount, and the proof justifies a verdict for that amount, or about- that. At any rate, had that amount been found in writing, plainly set forth, there is from the record evidence to sustaiu it. The verdict,was-for the plaintiff for “ 9.80 88.” Taking the affidavit, the declaration, and the proof together, it is very -plain that the jury meant $980 88. A verdict for nine dollars and eighty cents and eighty-hundredths of a cent, would be so strange and unusual a verdict that every intendment ought to be against it, and our judgment is, that this verdict is for $980 88.

Judgment affirmed.