Ware v. House

Hill, J.

1. Where an action was brought upon a contract for the furnishing of board and the performance of certain services by a woman and her minor children, and the value of such board and services was in issue, it was not admissible for the defendant to prove by a witness that the latter agreed to board and care for the same person for a stated amount per month, where there was nothing to indicate that the board which was thus offered to be furnished was substantially the same as that for which the contract was made with the plaintiff, and that the services which the witness offered to render were similar to those covered by the contract. This case differs from that of McLean v. Clark, 47 Ga. 25 (6), where a bona fide offer of a price for certain machinery was held admissible to throw light on its value.

2. On the trial of a case of the character stated in the preceding headnota, it is error requiring a reversal for the court to instruct the jury that “The existence of a fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of it having transpired. This rule does not apply when, two parties having equal facilities for seeing or hearing a thing, one swears that it occurred, the other that it did riot,” without stating in connection therewith that' the rule applies only where the witnesses are of equal credibility. Helms v. State, 136 Ga. 799 (5), 803 (72 S. E. 246); Warrick v. State, 125 Ga. 133, 142 (53 S. E. 1027).

Judgment reversed.

All the Justices concur.