
    James Wells against Thomas Drayton.
    Charleston,
    May, 1817.
    Where one of r™depaátl0vcS contract, in con™th the other at a ltsSefu> Si and ass'erts one of the terms of th© contract to which S £1, ímt as ‘!® otherteSoDj?
    This was an action to recover overseer’s ges, tried before Mr. Justice Smith, at Coosawati , . _~ _ _ chie. m JNovember lenn* 1813. 13y the 7 7 » o ment entered into between the parties, (which it . . was agreed should be reduced to writing," but O o" never was,) the defendant agreed to allow the plaintiff for his own services, and for the labour of three hands, by him to be employed in the crop, six equal shares; these shares, it was proven, would have been worth $ 100 each. The plaintiff entered upon this service in January, and continued in it for about two months, when they disagreed, and the defendant dismissed him; and the only question was, whether the plaintiff was entitled to recover for the whole year’s wages, or for the time he was actually engaged in the service; and this depended on the original contract, as there was no proof that the improper conduct of the plaintiff authorized the defendant to dismiss him. The only evidence as to this particular was, that the defendant, some time after the agreement had been entered into, in a conversation with the plaintiff, said that it had been originally agreed, that if they should differ, and it should become necessary to separate, he was only to pay him for the time he was actually employed ; this the plaintiff did not deny nor dissent to, nor was there any other evidence to controvert • the fact. The presiding Judge was of. r ° » opinion, and so charged the Jury, that in the ahsence of other proof, this fact furnished a strong presumption that such was the original contract, and that the plaintiff was only entitled to recover a rateable part of his year’s wages; but the Jury thought differently, and found a verdict for the plaintiff for $600, the whole year’s wages.
    A motion was made for a new trial on the ground that the verdict was contrary to law, evidence, and the charge of the Judge.
   Johnson, J.

delivered the opinion of the Court.

There is no question of law arising in'this Case;„what was the contract, is the only question. Í am clearly of opinion that the presiding Judge took a correct view of this case, and that the Jury erred in departing from his charge. The acquiescence of the plaintiff in the statement made by the defendant furnishes, in the absence of all other proof, a strong presumption that the contract was correctly stated; and it appears to me that it is entitled to the more weight in this case, as it was originally intended by the parties to reduce the contract to writing, and it could scarcely .have been thought necessary, under these circumstances, to have called witnesses to its particular provisions. If by the terms of the contract, the plaintiff was to receive only a rateable part of his wages in the event of their disagreement and separation, and that event did happen, the contract was at an end, and he is entitled to no more. It was a contract of his own making, and he is bound by it, for the Court neither can nor will interfere for the purpose of making for him a new contract, nor to change the provisions of one before made. The opinion of the presiding Judge, so clearly expressed in this case, although not perhaps of itself a sufficient ground to authorize the granting of a new trial, is entitled to great weight, and, when coupled with the strong facts in this case, renders it an imperious duty.

T. S. Grimké for the motion.

I am therefore of opinion that the motion for a new trial ought to be granted.

The other Judges concurred.  