
    The Fremont Cultivator Company vs. McCamy.
    Although there may have been two verdicts in favor of a defendant, yet where the verdict was clearly contrary to evidence, the court should have granted a second new trial.
    December 12, 1887.
    New trial. Before Judge Fain. Murray superior court. February term, 1887.
    Reported in the decision.
    S. P. Maddox and McCutchen & Shumate, for plaintiff.
    McCamy & Walker, for defendant.
   Blandford, Justice.

The plaintiff in error brought an action against the defendant in error upon an account, which account contained several items for cultivators at certain prices. The plaintiff relied upon certain correspondence which had taken place between it and the defendant, McCamy. These letters consisted, first, in a circular in which the plaintiff requested the defendant to become its agent to sell these cultivators; also in letters of the defendant, and in a bill of lading of these cultivators, in which bill of lading it was stated'that the defendant bought the cultivators from the Fremont Cultivator Company at a certain price. There was also a letter from the plaintiff to the defendant, in which the company demanded payment from McCamy for these cultivators at the price at which they had been furnished. A reply to that letter was put in evidence, in which McCamy asked for further time, and insisted-that they ought not to sue him, as he had not been able to sell but one of the cultivators. Brinkerhoff, who was agent of this company, testified to these different letters, and stated that they made the contract between the parties, the contract being that they were to let him have these cultivators, etc. at a certain price, which he was finally to pay the company. McCamy was also put on the stand as a witness, and he certainly knew all about this transaction; yet he did not undertake .to explain, nor did he say anything about the letter to the company asking for further time for payment. Nor did he state that he sold these things as the agent of the company. Nothing of that sort appears in his testimony. This was the second trial of the case. On the first trial, the jury found in favor of McCamy, and the court granted a new trial. This was the second verdict in favor of McCamy, and the court would not disturb it. We think he should have disturbed it. The verdict was contrary to the evidence. The evidence certainly went to show the liability of McCamy to this company. No man knew better than did McCamy whether he sold these cultivators as agent of the company, or not; no man knew better than he what was meant by his letter asking for further time for payment to the company; and yet he offered no explanation. We think the court ought to have granted a new trial, upon the ground that the verdict was contrary to the evidence.

Judgment reversed.  