Tippin v. Byrd

• Decision Date: 31 January 1875
• Citation: 54 Ga. 119
• Parties: John B. Tippin, plaintiff in error. v. S. M. H. Byrd, administrator, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 119

John B. Tippin, plaintiff in error. v. S. M. H. Byrd, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Witness. New trial. Scaling ordinance. Before Judge McCutchen. Polk Superior Court. August Term, 1874.

For the facts, see the decision.

Alexander & Wright, for plaintiff in error.

Warren Akin, for defendant.

WARNER. Chief Justice.

This was an action brought by the plaintiff against the defendant, Elijah Byrd, in his lifetime, to recover the difference in the price of forty-three bales of cotton, which the plaintiff alleges he purchased from the defendant in June, 1862', at twelve and one-half cents per pound, and which the defendant refused to deliver, the price of cotton having risen in value, after the making the contract and the time specified *therein for the delivery of the cotton. On the trial of the case, the jury found a verdict for the defendant. The plaintiff made a motion for a new trial, on the ground that the verdict was contrary to law, contrary to the evidence, and with-out evidence; and because the court erred in not allowing the plaintiff to testify in his own favor, as set forth in the record. The court overruled the motion, and the plaintiff excepted. It appears from the record that Elijah Byrd, with whom the contract was made, died pending the suit, and that S. M. H. Byrd, his administrator, was made a party defendant thereto.

The plaintiff offered in evidence the following paper writing:

"Polk County, June 28th, 1862.

"J. B. Tippin, bought of Elijah Byrd forty-three bags of cotton, twelve and one-half cents per pound, to be weighed and paid for at his house, and delivered at Rome—fifty cents per bag for hauling. Received $50 00 on the above.

(Signed) "Elijah Byrd."

The plaintiff proved that twelve and one-half cents in Confederate money was the full market price for cotton at the time of the contract, and that was the common currency of the country; that cotton advanced in price after making the contract, between the 28th of June and the 8th of September, 1862, to more than thirteen cents per pound, but how much more the record does not show. The plaintiff also offered in evidence a letter written by Elijah Byrd to him, dated 8th of September, 1862, in which he stated that he had determined to let him have his cotton at twelve and one-half cents per pound, as per contract; that he was ready to weigh it and receive the payment for it at his gin-house, according to contract,...