Montgomery, Judge.
1. Id certum est quod certum, reddi potest is too trite a max> im, and of too common application to need elaboration. The record, and verdict, taken together, show the exact sum which the jury meant to find for the plaintiff. The finding is, therefore, sufficiently certain: Mitchell vs. Addison, 20 Georgia, 50.
2. The note sued on was given in renewal of one made before the war. To such a contract the Ordinance of 1865 was not intended to apply. It is expressly excepted by the proviso to the second section. There was some slight evidence offered on the part of the defendant that the note was given in compromise of the former debt, and was to have been paid in Confederate currency. This established, the contract would have been brought within the operation of the Ordinance. And, had the jury so found, we would probably not have disturbed the verdict. The difficulty is, they found otherwise, and the evidence in conflict with the verdict, on this point, is of too indefinite a character to warrant this Court in interfering.
3. The negative answer of Barnett to the question propounded to him, objected to .in the fourth ground for new trial, was wholly immaterial and could not have prejudiced the defendant’s case; that a man does not know of the existence of a fact is, generally, no proof of its non-existence, and it would be difficult to select a jury so little intelligent as not to understand this. The failure to prove the facts, on the part of the defendant, where it was his interest to make such proof, if possible, would have far more weight with them. The error here, if any, is too immaterial to warrant a reversal.
4. This Court has two or three times decided, that to warrant a reversal on the ground of the overruling of objections to evidence, by the Court below, the record must show what the objections were: 5 Georgia, 156, Kollock et al. vs. Jackson; 14 Georgia, 174, Ingram et al. vs. Little; 20 Georgia, [117]*117134, Goodlittle vs. Roe. We think this rule should be adhered to. Any other would entrap the Judge below; and operate as a surprise upon the other side. If interrogatories are objected to, because not properly executed, and the objection rightly overruled, would it be fair either to Court or opposite counsel to permit plaintiff in error to insist here that they were illegally admitted, because the witness for some^eason was an incompetent one? Or, if a deed be objected to, on the ground that it only conveyed a life estate, (where it was important to show the grant of a fee,) and overruled, ought the party to be allowed to urge here that it is not properly recorded? If the nature of the question or objection would suggest the ground of objection, and exclude all others, perhaps that might be sufficiently definite. That is not this case.
5. The proof offered to show that Alfred Jackson was trying to borrow Confederate money, with which to pay off the debt, now sued for, was entirely irrelevant and would have established nothing pertinent to the issue if admitted. There was no knowledge shown on the part of James Jackson of this attempted loan for any such purpose, or indeed for any purpose, nor any consent by him to receive such payment. It simply was no part of the res gestae.
6. R. H. Jackson’s testimony, that he had had conversations with Josiah Jackson, “who as he (witness) understood Avas agent of Nancy Jackson,” was clearly hearsay and no proof of the agency. It AAras properly rejected.
7. Upon what principle it Avas sought to admit R. H. Jackson’s testimony of the contents of a letter which he held in his hand, Ave are somewhat at a loss to understand. The contents as far as disclosed were irrelevant. The letter itself was not offered in evidence. The fact that it was shown to James Jackson cannot make R. H. Jackson’s testimony of its contents admissible.
8. Cook’s testimony as given on a former trial, was reduced to writing and agreed" upon as correct. Where the necessity of proving it under such a state of facts ? In Adair vs. Adair, 39 Georgia, 75, just such evidence Avas held admissible. The [118]*118only substantial difference between that case and the present is, that there the witness had only left the State — here he is dead. The difference in favor of the admissibility of the evidence is on the side of the case at bar.
9. Section four of the Relief Act of 1870, does not provide for any separate trial of the issue as to whether the taxes on the contract sued on, have been paid or not. It only makes it necessary for the plaintiff to prove the fact of their payment before he shall be entitled to recover. If the jury are clearly satisfied that the taxes have not been paid, then under the Act, they must find that fact specially, not find generally for the defendant, upon which the case will be dismissed, leaving the plaintiff at liberty to commence a new suit, if perchance, his claim is not barred by the statute of limitations. But when they find that the taxes have been paid, where the necessity of two trials when one answers every purpose ?
10. While a general verdict of so much for principal, with interest and costs, would have answered every purpose, the manner in which the jury rendered their verdict cannot be said to be objectionable, and the charge of the Court complained of in the twelfth ground for new trial, calling the attention of the jury separately to the issue, of the necessity of an affidavit of the payment of taxes was necessary, for non oonstat, that the jury would not find in favor of the defendant upon the tax issue, and if they did, that ended the case, so far as their duties were concerned. If they found the tax issue in favor of the plaintiff, as they must have done from their verdict, it then became necessary for them to consider the pencil entry on the note, if it was a credit, their verdict would be for one amount, if it was not, for another. Finding that it was not, it is true they might have found a specific sum as principal without further notice of the pencil entry, or they might have rendered a verdict as they did which made it sufficiently certain, as already indicated. This objection goes more to the form than the substance of the verdict. And we find no error in the charge of the Court submitting the issues to the jury in the manner complained of.
[119]*11911. Whether the pencil entry was intended as a credit or as a memorandum, from which to make a credit entry in ink, was properly a question for the jury, under the evidence, and there was no error in leaving it to them. This entry in pencil was signed by no one, and was in the same handwriting with the body and signature of the note; in other words, in the handwriting of the maker. Counsel for defendant insisted it was a credit. It could only be so upon the hypothesis that the holder had authorized the maker to make the entry for him. Was this a question of law or fact? If the latter, it was the province of the jury to determine it.
12. When, in civil cases, counsel desires a charge made to the jury, they should request the same in writing j otherwise, they cannot complain of the failure of the Court to give it: Street vs. Lynch, 38
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Montgomery, Judge.
1. Id certum est quod certum, reddi potest is too trite a max> im, and of too common application to need elaboration. The record, and verdict, taken together, show the exact sum which the jury meant to find for the plaintiff. The finding is, therefore, sufficiently certain: Mitchell vs. Addison, 20 Georgia, 50.
2. The note sued on was given in renewal of one made before the war. To such a contract the Ordinance of 1865 was not intended to apply. It is expressly excepted by the proviso to the second section. There was some slight evidence offered on the part of the defendant that the note was given in compromise of the former debt, and was to have been paid in Confederate currency. This established, the contract would have been brought within the operation of the Ordinance. And, had the jury so found, we would probably not have disturbed the verdict. The difficulty is, they found otherwise, and the evidence in conflict with the verdict, on this point, is of too indefinite a character to warrant this Court in interfering.
3. The negative answer of Barnett to the question propounded to him, objected to .in the fourth ground for new trial, was wholly immaterial and could not have prejudiced the defendant’s case; that a man does not know of the existence of a fact is, generally, no proof of its non-existence, and it would be difficult to select a jury so little intelligent as not to understand this. The failure to prove the facts, on the part of the defendant, where it was his interest to make such proof, if possible, would have far more weight with them. The error here, if any, is too immaterial to warrant a reversal.
4. This Court has two or three times decided, that to warrant a reversal on the ground of the overruling of objections to evidence, by the Court below, the record must show what the objections were: 5 Georgia, 156, Kollock et al. vs. Jackson; 14 Georgia, 174, Ingram et al. vs. Little; 20 Georgia, [117]*117134, Goodlittle vs. Roe. We think this rule should be adhered to. Any other would entrap the Judge below; and operate as a surprise upon the other side. If interrogatories are objected to, because not properly executed, and the objection rightly overruled, would it be fair either to Court or opposite counsel to permit plaintiff in error to insist here that they were illegally admitted, because the witness for some^eason was an incompetent one? Or, if a deed be objected to, on the ground that it only conveyed a life estate, (where it was important to show the grant of a fee,) and overruled, ought the party to be allowed to urge here that it is not properly recorded? If the nature of the question or objection would suggest the ground of objection, and exclude all others, perhaps that might be sufficiently definite. That is not this case.
5. The proof offered to show that Alfred Jackson was trying to borrow Confederate money, with which to pay off the debt, now sued for, was entirely irrelevant and would have established nothing pertinent to the issue if admitted. There was no knowledge shown on the part of James Jackson of this attempted loan for any such purpose, or indeed for any purpose, nor any consent by him to receive such payment. It simply was no part of the res gestae.
6. R. H. Jackson’s testimony, that he had had conversations with Josiah Jackson, “who as he (witness) understood Avas agent of Nancy Jackson,” was clearly hearsay and no proof of the agency. It AAras properly rejected.
7. Upon what principle it Avas sought to admit R. H. Jackson’s testimony of the contents of a letter which he held in his hand, Ave are somewhat at a loss to understand. The contents as far as disclosed were irrelevant. The letter itself was not offered in evidence. The fact that it was shown to James Jackson cannot make R. H. Jackson’s testimony of its contents admissible.
8. Cook’s testimony as given on a former trial, was reduced to writing and agreed" upon as correct. Where the necessity of proving it under such a state of facts ? In Adair vs. Adair, 39 Georgia, 75, just such evidence Avas held admissible. The [118]*118only substantial difference between that case and the present is, that there the witness had only left the State — here he is dead. The difference in favor of the admissibility of the evidence is on the side of the case at bar.
9. Section four of the Relief Act of 1870, does not provide for any separate trial of the issue as to whether the taxes on the contract sued on, have been paid or not. It only makes it necessary for the plaintiff to prove the fact of their payment before he shall be entitled to recover. If the jury are clearly satisfied that the taxes have not been paid, then under the Act, they must find that fact specially, not find generally for the defendant, upon which the case will be dismissed, leaving the plaintiff at liberty to commence a new suit, if perchance, his claim is not barred by the statute of limitations. But when they find that the taxes have been paid, where the necessity of two trials when one answers every purpose ?
10. While a general verdict of so much for principal, with interest and costs, would have answered every purpose, the manner in which the jury rendered their verdict cannot be said to be objectionable, and the charge of the Court complained of in the twelfth ground for new trial, calling the attention of the jury separately to the issue, of the necessity of an affidavit of the payment of taxes was necessary, for non oonstat, that the jury would not find in favor of the defendant upon the tax issue, and if they did, that ended the case, so far as their duties were concerned. If they found the tax issue in favor of the plaintiff, as they must have done from their verdict, it then became necessary for them to consider the pencil entry on the note, if it was a credit, their verdict would be for one amount, if it was not, for another. Finding that it was not, it is true they might have found a specific sum as principal without further notice of the pencil entry, or they might have rendered a verdict as they did which made it sufficiently certain, as already indicated. This objection goes more to the form than the substance of the verdict. And we find no error in the charge of the Court submitting the issues to the jury in the manner complained of.
[119]*11911. Whether the pencil entry was intended as a credit or as a memorandum, from which to make a credit entry in ink, was properly a question for the jury, under the evidence, and there was no error in leaving it to them. This entry in pencil was signed by no one, and was in the same handwriting with the body and signature of the note; in other words, in the handwriting of the maker. Counsel for defendant insisted it was a credit. It could only be so upon the hypothesis that the holder had authorized the maker to make the entry for him. Was this a question of law or fact? If the latter, it was the province of the jury to determine it.
12. When, in civil cases, counsel desires a charge made to the jury, they should request the same in writing j otherwise, they cannot complain of the failure of the Court to give it: Street vs. Lynch, 38 Georgia, 631, and authorities there cited.
13. This Court cannot undertake to prescribe to a Judge of the Superior Court how he must satisfy himself, on a motion for a new trial, as to what actually occurred at the trial. If a difference exist between himself and counsel as to what did occur, he will, doubtless, take every fair means of refreshing his memory. At least, we see nothing in the course pursued by the Court in this instance which calls for interference on our part. He heard two of the counsel for plaintiff in error give their recollection of the events as they occurred, and also heard counsel, who were present, but not in the case.
14. The abstract principle contended for by counsel for plaintiff in error, that a party who is induced to enter into a contract through the fraud of the other party to the contract, may repudiate the contract, or claim an abatement of the price he has agreed to pay to the extent of the damage suffered, is true. But the evidence fails to show any fraud on the part of the defendant’s intestate. The land trade seems fo have been sought by the intestate of the plaintiff in error, through the plaintiff in error, himself, as his agent, with full opportunity on the part of the latter to examine the premises, and no trust or confidence reposed in the vendor. How, then, is the principle applicable?
[120]*12015. One or more of the assignments of error in this case is so indefinite as to leave us in doubt of what the plaintiff in error complains. The ninth ground for new trial, for instance, states that defendant’s counsel asked the witness, R. H. Jackson, the following question: “You knew the condition of the land when Alfred moved to Arkansas, and of the injury, and of the value of the payments that were made; now state whether or not the payments made amount to as much as the value of the land, in its real condition when sold?” This question is objected to, and a history given of an altercation between the Court and counsel, in which no distinct question is presented to the Court for adjudication. The ground concludes : “ Finally, the Court stated he (counsel for plaintiff in error,) might ask the value. The Court erred in all these rulings and decisions, and in each of them.” It will be noted that but one ruling is made, and that in favor of plaintiff in error. The credit on the note showed the payments made, and the -witness was permitted to testify to the value of the land. "What, then, are the rulings and decisions complained of in this ground ?
16. While not distinctly made, as above intimated, One additional point we do gather from the ninth ground for new trial, which is, that the Court had no right to determine whether the defendant had, by proof of fraud on James Jackson’s part, laid the foundation for proving the value of the land to be less at the time it was bought than the price agreed upon. The Court claimed this right, and stated that the defendant had not made this preliminary proof, but, nevertheless, permitted the value of the land to be proved, as above stated. We think the Court was correct in claiming the right to determine, in the first instance, whether sufficient proof had been offered of fraud, -on James Jackson’s part, to let in proof which would entitle the defendant to an abatement of the price agreed to be paid. This must necessarily be so. Unless fraud was proved, the defendant was not entitled to an abatement. When plaintiff’s counsel objected to proof of the price, the Court was the only tribunal who could determine whether [121]*121defendant’s preliminary proof had entitled him to go outside of his contract. The final determination of the question of fraud was, of course, for the jury.
17. Many of the errors complained of are of that immaterial character, conceding them to be errors, as will not warrant a disturbance of the verdict, and, hence, they are disposed of by the general rule, that the judgment of the Court below will not be reversed for immaterial errors.
18. The evidence shows that the land was purchased by EH. Jackson, as the agent of Alfred Jackson, from James Jackson, with full opportunity of examining the land; that no misrepresentation was made by James Jackson; that there was no relation of trust or confidence, between the parties. Under such facts, there is no rule of law which requires a vendor to state any deterioration which may have occurred in the value of the land since the principal last saw it. If the land prove of less value than the agent or his principal'supposed, it is no ground for rescinding the contract or abating the price. If a person, sui juris, make a contract which proves to be a bad one, the Courts cannot help him in the absence of fraud on the part of the person with whom he contracts.
We find no error in the verdict, from any cause.
Judgment affirmed.'