Southwestern Railroad v. Rowan

McCay, Judge. 1. We see no error in the admission of the testimony of McCaury, so far as it was admitted. True, he does not know, of his .own knowledge, of the contract. He says this. And the Court properly ruled out everything in his answers upon that subject. But he testifies to certain facts within his knowledge, to-wit: that certain of this lumber was delivered, and, to his understanding, that it was delivered under particular circumstances. As to the fact of the contract, or as to its terms, his testimony is of no value, nor [414] does he give it as the truth, but only as hearsay. Its only value is to explain the fact of the delivery. It is a part of the res gestae of that transaction, and is legitimate testimony to explain that fact, even if the fact be that no such contract existed. It only amounts to a statement that the delivery was made under the belief that there was a contract; whether that belief was well or ill founded is immaterial. And this is, we are satisfied, perfectly in accord with the rules of evidence, as laid down by standard writers upon the subject. Our Code, section 3718, “ declares that, whenever information, conversation, letters, replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” 2. The general rule undoubtedly is, That the measure of damages in a contract like this, is the difference between the agreed value and the market value of the thing contracted for, unless the article have no market value. The case of the Southwestern Railroad Company vs. Bryan, 41 Georgia., 71, was a case of cross-ties, an article the market value of which it is almost impossible to fix, since there is, ordinarily, but one purchaser in a community. The case of stringers stands on a different footing. Sawed lumber has a distinct market value in almost every community. In this case, however, though there may be evidence before the jury as to the damages, which may not be exactly legitimate, yet there was also plenty of evidence to furnish the jury with data for a proper calculation. The number of feet bargained for was proven, the price per thousand feet, and the market price, at and after the refusal to receive, were all before the jury. 3. As there is no complaint of the charge of the Court, we must presume that the jury were properly instructed as to the measure of damages, and that in making up their verdict, they conformed to the instructions given. Different minds would probably come to different conclusions as to the truth of the case as made out by the evidence. But the [415] jury are the judges. In a case like this, where the evidence is conflicting, and the result must turn largely upon the credit the jury give to the witnesses, the decision is and ought to be very specially with the jury. As there is plenty of evidence to sustain the verdict, if it is believed, we will not disturb the finding. Judgment affirmed.