
    JOHN H. NEWTON, plaintiff in error, v. JOSHUA R. PRICE, defendant in error.
    (Atlanta,
    June Term, 1870.)
    CONTRACTS — WAIVER — NEW TRIAL — VERDICT—PROVINCE OF JURY.—In March, 1863, P., sold to N., ninety thousand pounds ginned cotton, for the sum of $18,000 00, which was paid for in Confederate money, and P. agreed in writing to deliver the cotton at Wootten’s station, on the Southwestern Railroad, within ten days after demand during the present year, the cotton-to be in about one hundred and fifty bales, and to be in good shipping order as to the quality of the rope; the bagging if decayed to be patched, and put in good order up to the present time; the cotton to remain on the premises of P., the vendor, on his farm in Lee county, on floor in houses, and under good shelters during the present year if desired free of charge. If the amount of weight' of cotton in the bales now ginned should fall short of the number of pounds mentioned, it was to be made good or supplied out of the crop of 1861, of the best of that cotton remaining; N., the purchaser, takes all the risks from this date. It appears from the evidence in the record, that there were only about one hundred and thirty bales of the cotton packed at the time of the sale, and that the gin-house of P., containing unginned cotton of 1861 was destroyed by fire, and the main question on the trial was, whether N., the purchaser of the cotton, by a subsequent agreement with P., had waived his right under the contract to have the balance of the cotton packed, or whether he had consented to let the cotton of the crop of 1861, remain as it then was, unpacked, in the gin-house of P., the vendor, at the risk of N., the purchaser. In regard to this main question in the case, the evidence in the record is conflicting and contradictory. The jury found a verdict in favor of .the defendant, and a new trial was refused by the Court below:
    
      Held, That this Court, in accordance with its repeated rulings, will not interfere with, the verdicts of juries when the evidence is conflicting or contradictory, as it is the exclusive province of the jury to judge of the credibility and weight of the evidence submitted to them, when no material principle of law has been violated by the Court in submitting the *case to their consideration. In view of the facts contained in this record, and the rulings of the Court in relation thereto, we find no error which will authorize the reversal of the judgment of the Court below in refusing a new trial.
    EVIDENCE—ADMISSIBILITY—ONE OF SERIES OE LETTERS.—One of a series of letters written during a correspondence, as to the same transaction, and in reply to one from the plaintiff, may be introduced as evidence by the defendant. (R.)
    NEW TRIAL—CHARGE OF OOURT—IMMATERIAL ERROR. —If the charge of the Court collectively be right, a new trial will not be granted though some isolated part of it be wrong: (R.)
    Contracts. Waiver. Motion for New Trial. Bill of Exceptions. Before Judge Gibson. Washington Superior Court. October Term, 1869.
    Price made and delivered to Newton, the following paper.
    “Davisboro, Ga., March 11th, 1863.
    “Rec’d of John H. Newton, eighteen thousand dollars, for which I bind myself, my heirs and assigns to deliver, within ten days after demand, during the present year, at Wotten’s station, (station 11, S. W. R. R., ninety thousand pounds of ginned cotton, to be weighed on the platform at said station, balance weights; the cotton to be in about 150 bales, and to -be in good shipping order as to quantity of ropes. The bagging if decayed, is to be patched and put in good order up to the present time. The cotton is to remain where it now is, on my farm in Tee county, Ga.) on floors in houses, and under good shelter during the present year, if desired, free of charge. If the amount of weight of cotton in the bales now ginned should fall short of the number of pounds mentioned, it is to be made good or supplied out of the crop of 1861, of the best of that cotton remaining. Said purchaser, John H. Newton, takes all further risks from this date.
    “J. R. Price.”
    On the 20th of August, 1867, Newton sued Price, setting forth said paper, averring that on the 11th of March, 1863, he paid Price $18,000 00 for said cotton, that the cotton; remained in Pee county till the 1st of August, 1865, when he demanded the same, and Price failed to deliver more of it than seventy-two thousand two hundred and eighteen pounds, refusing to deliver the balance, seventeen thousand seven hundred and eighty-two pounds, to the damage of Newton $15,000 00.
    On the trial plaintiff’s counsel read in evidence said paper, and proved the demand and refusal of delivery as charged. *Knott & Howes, commission merchants, testified that, on the 7th of July, 1865, they bought of one Salter, twenty bales" of cotton weighing eleven thousand one hundred and twenty-five pounds, which was shipped from Wootten’s station; that Newton showed that this cotton had been stolen from him, and they paid him therefor $1,040 25 in currency, and $75 80 in gold. Price’s overseer, during 1861 and up to 1st of September, 1865, testified that Price was but seldom at his plantation; that in March or April, ,1863, Price told him of said sale, and said to him, if the bales already packed did not weigh ninety thousand pounds, it was to be ginned of the crop of 1861 to make that amount; part of the cotton was in bales stored in some unoccupied negro-houses, part under the gin-house and part under some sheds in the old horse-lot, and Price instructed him to remove the cotton from the gin-house and old horse-lot, and to put it into other houses near that in the negro-houses, so that Newton could .have it insured. Price further instructed him to deliver the cotton to Newton when he called for it. He testified that there were then about one hundred and thirty-one or one hundred and thirty-two bales of cotton on the plantation. On removing them: the ropes of six or eight bales broke, these bales were thrown into the lint room and never repacked for want of rope and bagging; the cotton had mot been weighed except when gathered; it was of poor quality and in bad order, but it was put into good shipping order. Between the 8th and 12th of August, 1865, he delivered Newton at said station, one hundred and one of said bales; one had been sold for taxes. Nineteen bales had been stolen from one of the houses and it was burned, and one or two bales were burned in it; part of the crops of 1861 and 1862, with eight or ten bales of unpacked lint in the gin-house, was burned also. There was also other seed cotton of the crops of 1861, 1862 and 1863 in other buildings; about seventeen thousand pounds of the crop of 1861 was in the old dwelling and was not burnt. He further testified, that Price told him he sold the cotton because he was afraid it would be damaged or stolen, and that he wished to pay for some lands in Washington *county, Georgia; his impression is that Price used at least part of said money in paying his debts, and for land. He said he sent from the plantation to different parties named, twenty-nine bales of cotton, between June the 6th, 1862, and the 6th of September, 1862, and part of the crop of 1861. The agent of the Railroad Company, at said station, testified, that one hundred and one bales of the cotton, weighing fifty-six thousand and seventy-three pounds, were delivered in Newton’s presence, between the 8th and 12th of July, 1865, except the last two which were delivered on the 14th of July, 1865.
    They also read in evidence several letters from Price, one to his overseer, dated the 25th of March, 1863, introducing Newton to him, saying'he had sold-Newton all the “cotton packed on the plantation,” and asking him to allow Newton to examine its condition. Another, dated the 28th of March, 1863, from Price to Newton, furnished a diagram of the position of the different lots of cotton on said plantation, saying there were only about' one hundred and thirty bales of it packed, that the gin-house and lint-room were full of seed-cotton and ginned-cotton. Another letter dated the 8th of November, 1864, from Price to Newton, purporting to be a reply to one from Newton of the 4th, gave Price’s consent that the cotton should remain in statu quo, at Newton’s risk. It was shown that cotton sold from August, 1865, till the trial, at • prices varying from eight to fifty-eight cents per pound, that in August, 1865, the price was thirty-five cents per pound, and between the fall and winter it was fifty-eight cents, and that in the fall of 1865 and through 1866, it took from $1 50 to $2 00 in greenbacks to buy one of gold. Here plaintiff rested his cause for the present.
    Defendant’s counsel introduced evidence as follows: That greenbacks as compared with gold during the time last stated, ranged as $1 00 to $1 40 or $1 60. They put in evidence over plaintiff’s objections, a letter from Price to Newton, dated' the 10th of July, 1866, which had been drawn from Newton by notice. That letter purported to reply to one of the 5th of July, 1866, averred that, by the contract, Newton *was confined to the crop of 1861, that of that crop there was one hundred and thirty-three bales, and the balance was in the seed in the gin-house, where there was no packed cotton; that in the diagram sent him he especially set out the gin-house, said Newton had already made sufficient out of this Confederate contract, and he refused to pay him anything more.
    Dr. Price testified, reiterating the trade, etc., saying he was paid in Confederate money, that Newton proposed an arbitration which he declined; that Newton told him he insured the ninety thousand pounds; he admitted that he paid his debts and bought land with part of said money, but how much was so used he did not know; the balance perished on his hands; he said he told Newton, in March, 1863, that all the cotton was not packed, and Newton waived the packing of the balance and received it as it was, and wrote him for the diagram, in which he said he wished to insure his interest in the cotton in the gin-house. (The loss of this letter was shown.)
    In rebuttal, plaintiff’s counsel read in evidence said policies of insurance. The first was on one hundred and fifty bales of cotton on said plantation, from March 18th, 1863, to 18th September, 1863; the second was for one hundred and thirty bales, from the 3d of April, 1863, to July 3d, 1863. This second was taken in lieu of the first which had been can-celled. ' Newton testified that he made this substitution when he learned that there were but one hundred and thirty bales packed, and denied having told Price anything to the contrary of this, and said he never applied for or received any insurance upon any unpacked cotton, or any seed-cotton; that he bought only packed cotton and did not know that there was any loose cotton in the gin-house. The balance of his testimony was a review of the foregoing, showing how many pounds short he was and its value as aforesaid. The Court charged the jury as shown in the motion for a new trial. The verdict was for the defendant. Newton’s counsel moved for a new trial upon the following grounds:
    *lst. Because the verdict was contrary to the evidence in the case.
    2d. Because the verdict was strongly and decidedly against the weight of evidence and the law of the case.
    3d. Because the verdict was contrary to the charge of the Court, in this, that the Court gave the following requests of counsel for plaintiff as the law applicable to the case:
    “If Price agreed to deliver ninety thousand pounds of cotton in one hundred and fifty bales, or thereabouts, he was bound to deliver it in bales, and if he did not, he is bound for the deficit, unless the jury are satisfied by the evidence that the contract was changed by mutual consent and agreement of the parties thereto; that if there is a written contract unchanged, it is the law of this case, and binds both parties to comply with its terms.”
    Because the Court erred in . refusing the following requests to charge: “That a statement, made to bind another, must be distinctly acquiesced -in by the other before he is bound by it.” Also, “If the jury find that 17,782 pounds of cotton were never packed in bales, but kept together by Price’s lint or seed-cotton, there was no segregation or delivery in terms of the contract or the law, and Price is responsible.” This request was not only refused, but the Court failed to give the principle in charge to the jury in any form, although insisted-upon by plaintiff’s counsel in his request, and distinctly brought before the knowledge of the Court, by reading the following language from Chitty on Contracts, page 382, to-wit: “Where goods, part of an entire bulk, are sold, the contract is incomplete if such part has not been distinguished and separated from the bulk,” and divers other passages to same effect, from same and other authorities.
    Because the Court erred in admitting in evidence, the letter of Dr. Price, dated July 10th, 1866.
    Because the Court erred in allowing evidence of the value of Confederate money at the date of the contract, and subsequently, to go to the jury.
    Because the Court erred in failing to instruct the jury as urged by counsel in argument, that if they believe from the ^'evidence, that Sheppard was authorized to deliver said cotton to the plaintiff, then the demand upon Sheppard, in 186.5, was a demand upon Price.
    Because the Court erred in charging the jury that the price of cotton, at the time of the demand, and at no other time, was the true measure of damages.
    Because the Court erred in saying, when he came to view the line of defense, “But gentlemen, the defendant replies to this by saying that he honestly believed that the 90,000 pound of cotton were in about 150 bales, at the time of the contract, and that as soon as'he found out that there were only 130 bales, he gave notice to Newton, and that Newton assented to the situation of the cotton. Now, gentlemen, if he was honestly mistaken, and gave the notice, and Newton agreed to it, was there anything unfair in that? Wasn’t it fair, just and equitable? It seems so to me, but if you find that he was not honestly mistaken, that he did not give the notice immediately, or within a reasonable time, there was no acquiescence on the part of Newton, then, of course, you will find for the plaintiff.”
    Because the Court erred in charging, that if th« parties to a contract differ as to the intention, the meaning placed on it by one party and known to the other to be thus understood, should be taken as the true meaning.
    Because the Court erred in giving in charge the principle contained in the‘2603d section of the Code.
    An order was taken allowing a brief of the evidence to be filed and the motion to b.e heard in vacation. Newton’s' counsel furnished Price’s counsel with a brief of the evidence in May, 1869; they took it saying they would make suggesttions of corrections in it, but they had submitted none up to October, 1869. Then they submitted certain objections and a version of Price’s testimony written by himself. To this one of Newton’s counsel made a written-; rejoinder. Finally, all these papers were handed to the Judge, he heard the motion and refused a new trial. Newton’s counsel presented the bill of exceptions, with said written papers attached to the brief of the evidence; he returned the bill of exceptions ^certified in the usual form, leaving with it and attached to it the written version of Price’s evidence and reply of Newton’s counsel thereto, without ■ explaining whether he meant them to he taken as parts of the bill of exceptions. In his decision overruling the motion for a new trial, he says he could not recollect distinctly the evidence; and knew not how to decide the dispute as to the evidence indeed, he considered these differences as not material, inasmuch as, in his opinion, there was sufficient evidence to sustain the verdict.
    When the case was called here, there was found with the papers a second and later certificate by the Judge, - which, in some points, contradicted the one attached to the bill of exceptions. Besides this, the Clerk below had not sent to the Clerk of this Court a copy of the recipt, which, by the rules of this Court, he is required to take for the paper from the post master or expressman, who forwards the same to this Court. Price’s counsel moved to dismiss the writ of error, because said second certificate contradicted the first, and for want of said receipt. This Court held that- the first certificate was final and would not notice the second, and said that said portion of said rules was but directory to the Clerks, and ordered the argument to proceed. (This cause was continued at last term for providential cause.)
    R. L. Warthen, Johnson & Montgomery, J. S. Hook, for plaintiff in error:
    
    
      As to Delivery, cited Code, sec. 2602; Ch. on Con., 335, et seq.; 7 Wend. 404. As to Confession: 1st Gr. Ev., sec. 96, & N. 2; 9th Cush., 592. As to Acquiescence: 3 C. & P., 103; 2 Kelly, 30. New contract requires new consideration : 1st Gr. Ev., sec. 303, et seq.; 3 Met., 486; Code, secs. 2682, 2678, 2697 ; 34th Ga., 355, and Duer v. Akin, December Term, 1869: 30th Ga., 731; 5th Wall., 497; 1st Par. on C„ 463; note N. As to Measure of Damages: 16th Bald., C. C., 331; Ch. on C., 393, N. As to the charge: Code, sec. 3183; 38th Ga., 71, et seq., etc.
    A. R. Wright, for defendant.
    
      
      See the principal case cited in Gunn v. Gunn, 74 Ga. 568.
    
   *WARNER, J.

The error assigned to the judgment of the Court below in-this case, is the overruling the plaintiff’s motion for a new -trial on the several grounds specified therein. The main and controlling question on the trial of the case, was whether Newton, the purchaser of the cotton, by a subsequent agreement with Price, had waived his right, under the contract, to have the balance of the cotton packed, and consented to let the cotton of the crop of 1861 remain as it then was, unpacked, in the gin-house of Price, the vendor, at the risk of Newton, the purchaser. In regard to this main and controlling question in the case, the evidence in the record is conflicting and contradictory. Did the Court below, in submitting this main and controlling question in the case to the jury, commit such errors in law as will authorize this Court to set the verdict aside and grant a new trial? This is a Court for the correction of errors in law, and not a Court for the correction of questions of fact found by the jury. Although this Court, had it been in the jury box, might have found a different verdict, still, it has no legal power or. authority, to interfere with the verdicts of juries, unless the same are rendered without evidence to support them, or are decidedly and strongly against the weight of the evidence. In such cases the verdict is illegal, and the Court may set it aside as being contrary- to law. But if the evidence is conflicting and contradictory as to a material point in the case, it is the exclusive province of the jury to judge of the credibility of the .witnesses, and to give such weight to their evidence as they may think proper, in view of their interest in the question, their relation to the parties, and all the circumstances connected with the transaction under investigation. If the jury think proper to believe one set of witnesses, in preference to others, it is their province to do so, and this .Court has no legal power or authority to control or set aside their judgment in relation to such matters. If there is sufficient evidence in the record to sustain the verdict, then it is a legal verdict, and the Courts have no legal right to interfere with it, unless there was some ^material principles of law violated by the Court in the submission of the questions of fact to the jury.

It is insisted in this case, that the Court erred in allowing the letter of the 10th of July, 1866, written by Price to Newton, to be read in evidence. It is undoubtedly true, as a general rule, that a party cannot, by writing a letter making a certain statement of facts, be allowed thus to manufacture evidence for himself and use it for his own benefit; but the letter offered in this case was one of a series of letters which had been written by the respective parties in relation to the same transaction, and was written in reply to one written by the plaintiff to the defendant which was lost or destroyed. The letters written by Newton to Price, in reply to the letters of the latter, being lost or destroyed, it would have been competent for Newton, who was examined as a witness, to have proved the contents of the letters written by him to Price, had he desired to have done so. In view of the facts of this case, and as explanatory of the conduct of the parties as connected with the cotton transaction, we think the letter was properly admitted in evidence.

In reviewing the charge of the Court to the jury on the main question in the case, taking it all together, we find no material error which might or ought to have produced a different result. If taking all the instructions of the Court to the jury collectively, the law seems to have been properly expounded to the jury, the judgment will not be reversed, though some one opinion may be erroneous. The correctness of a charge must be determined by the whole taken together: Terry v. Buffington, 11th Georgia Reports, 338.

Let the judgment of the Court below be affirmed.  