Banks v. Gidrot & Co.

By the Court.

Benning, J.

delivering the opinion.

If Rozle was agent to sell the wheel, he was agent to fix a price on it; he had power to agree as to the price of it.

[1.] It was proved, that he was agent to sell the wheel. The writing which was rejected, showed that he had put a price of not exceeding $200 on the wheel. And what was the value of the wheel, was in issue. And certainly, in the sale of a thing, the price put on it by one authorized to put a price on it, is to be considered as some evidence, that the value is not greater than that price.

On the question of the value of the wheel, therefore, we think that the writing was admissible.

The writing was of a somewhat singular kind. It was in these words: “ I bind myself to furnish John Banks, a centre-vent wheel-mill,” (mill-wheel?) “at his plantation, in Stewart County, for two hundred dollars, with all the appurtenances belonging — iron scroll-wheel, &c.; said Banks to have the frame of the house 16 by 24, and do the carpenter's work. I am to superintend the putting up the house, the dam, &c. and warrant the mill to grind one hundred bushels of corn per diem. 22 October, 1850. H. A. ROZLE.

for Gidrot & Co.”

But we do not think that this writing was admissible for the purpose of showing anything else than what was the value of the wheel.

[2.] If a witness says there was a “ special contract,” without stating what the contract was, he, of necessity, gives what . is mere matter of opinion. And in general, that is not evidence.

But even if a special contract had been proved in terms in this case, it does not follow that the plaintiff could not have recovered. By the Act of 1854, a plaintiff may amend his declaration at any stage of the cause, and in any matter, whether of form or substance.

We see nothing wrong in the charge.

But as the writing was rejected, we think there ought, on that account, to be a new trial.