Miller & Co. v. McKenzie , 126 Ga. 746 ( 1906 )

Atkinson, J.

(After stating the facts.) ■

1. Under the view we take of the matter, the question of variance between the averments and the proof as to the $700 transaction becomes immaterial. Let the petition be construed as contended by counsel for the defendant in error, and the verdict is still unauthorized by the evidence. It was necessar}', under either construction of the petition, that the plaintiff should show that there had been a sale of the wheat in conformity to his order. He swore that he had given the order to sell. He did not know and did not pretend to know whether a sale had taken place. He was positive in his assertion that he had given the order to sell to the agents of the defendants at their place oí business in Atlanta. This agent swore that the order had never been executed. It is said that this evidence is to be disregarded because it is palpably hearsay, as the agent was in Atlanta and the order was to be executed in Chicago, and what was done or not done was manifestly beyond his knowledge, except as derived from information imparted by others. Let this evidence be treated as hearsay and the testimony of the agent entirely eliminated. The.plaintiff contends that the sale is proved by the declarations of the agents in charge of the Atlanta office, one of whom admitted that the several amounts claimed were correct, and the other saying that he had investigated the matter and was satisfied that the amounts were correct and ought to be paid, and that he would see that they were paid or he would no longer remain in the employ of the defendants. The declarations in each instance were after the transaction was complete, and not in any sense made during its progress. They were not made dum fervet opus. They were not a part of the res gestse. They were merely hearsay, and hence had no probative value. Luquire v. Lee, 121 Ga. 635 and cit.; Moultrie Lumber Co. v. Driver Lumber Co., 122 Ga. 26 and cit.; Central R. Co. v. Maltsby, 90 Ga. 630(4); Claflin v. Ballance, 91 Ga. 411 (2). The judge should have granted a new trial on the ground that the verdict on the issue submitted was unauthorized by the evidence.

Judgment reversed.

All the Justices concur.