
    McRae Oil and Fertilizer Company v. Stone.
    Submitted January 26,
    Decided February 13, 1904.
   Eish, P. J.

i. On the trial of an action brought by a vendee against his vendor for the recovery of an alleged overpayment for cottonseed purchased at a given price per ton, alleged to have been made by reason of a mistake in the weight of such seed, neither the law of voluntary payments as embodied in the Civil Code, § 3732, nor the law of caveat emptor was applicable, and the court erred in giving the same in charge to the jury.

2. Evidence that the vendor did not consent that the cottonseed should be reweighed was irrelevant, and should have been rejected.

3. There was no error in rejecting as hearsay the testimony referred to in the , fourth ground of the motion for a new trial.

Judgment reversed.

All the Justices concur, except Simmons, C. J., absent.

Complaint. Before Judge Lewis. City court of Mount Vernon. February 26, 1903.

Graham & Graham, for plaintiff.

J. B. Geiger, for defendant.  