
    *JAMES C. CUTCHER, plantiff in error, v. JOHN JONES, administrator, defendant in error.
    (Atlanta,
    January Term, 1871.)
    1. CHARGE OF COURT — VERDICT —NEW TRIAL.—A charge of the Court, though erroneous, which does not affect the verdict, is not a good ground for a new trial.
    3. ISSUE OF FACT—EVIDENCE—VERDICT-.—In an issue of fact, if there be evidence on both sides, this Court will not disturb the verdict unless it be strongly and decidedly against the weight of testimony. i
    3. ADJUSTMENT OF CLAIMS*—ORDINANCE OF 1865.—In cases coming under the Ordinance of 1865, in relation to Confederate contracts, the jury have a large discretion in the adjustment of the equities between the parties under the contract.
    4. EXECUTION OF INTERROGATORIES—WITNESSES.— Section 3820 of the 'Revised Code prohibiting the presence of a party, his agent or attorney at the execution of interrogatories to be used in a cause does not apply when the witness examined is a party to the suit himself.
    5. PAROL EVIDENCE:—CONTRACTS—SCALING ORDINANCE.—Parol evidence contradicting the terms of a written contract is not admissible on the ground that the contract is included within the Scaling 'Ordinance of 1865.
    New Trial. Ordinance of 1865. Interrogatories. Parol to vary Writing. Before Judge Knight. Union Superior Court. October Term, 1869.
    Jones sued Cutcher upon his single bill for $1,520 23, payable “in good paper money,” made the 8th of October, 1862, twelve months after date. On it $700 00 was receipted for on the 30th of April, 1863, and $115 00 on the 30th of May, 1863. Cutcher pleaded the general issue, payment in full, and set off of $119 50.__
    
      The plaintiff read as evidence the note, and- closed. Defendant offered to prove that plaintiff told him when he gave the note, that he' would deduct one-seventh of it when it was to be paid, and that but for this promise he would not have given the note. This evidence was rejected. , It was shown that the note was given for part of the price of certain land bought by Cutcher and Jones.
    Cutcher testified, that shortly after the last credit, Jones said he wanted $600 00, and he paid him $600 00 in Confederate money, by paying it to Jones’ son or wife by Jones’ direction, and that Jones said he would not give up the note; but when the note was called for, it was not given up because *Jones’ son had it. He said he borrowed this $600 00 from one Higgins. And Higgins testified, that Jones told him he would have to call on Cutcher for $600 00 for a specified purpose, and afterwards he, Higgins, loaned Cutcher $600 00 for that purpose, but, whether he paid it, he did not know. The land is worth from $1,500 00 to $2,000 00 in good money, and he gave a full description of it. In 1863 Confederate money was not good. At the time of the trade he paid Jones $1,000 00 in good notes, and gave this note for the balance of the agreed price.
    Another witness said the land was worth from $1,500 00 to $2,000 00; another put it at $1,000 00.
    Jones’ daughter, who was Cutcher’s wife, testified that she paid said $600 00 for Cutcher, and called for the note, but Jones said he wished Cutcher and his son to be present before giving up the note. She said the land was worth, at the date of the trade, $3,000 00, and is now worth $3,500 00. In rebuttal, a witness- testified, that the land was worth $3,000 00 or. $4,000 00 in Confederate currency in 1862, and from $3,500 00 to $4,000 00, now, in United States currency; another said it is now worth $2,500 00 to $3,000 00 in United States currency. It was shown that gold, as compared with Confederate money, was worth two and a half for one at the date of the note, five for one at the date of the first credit, and six for one at the date of the second credit.
    Jones testified that his land was worth $2,500 00 in'specie, and he would not have sold it for less; that Mrs. Cutcher did offer him $400 00 in Confederate bonds and $300 00 in Confederate currency, but he did not take it, telling her he must have good paper money. He said Cutcher was grumbling afterwards about his note bearing interest, to which Jones replied, that at his death something would go to Cutcher which would cover the interest.
    Jones’ testimony was by interrogatories, and it appeared that his son and wife and his son’s wife were present-when he answered. His answers were objected to because of his son’s present, it beinsr shown that he was very aged and *blind and that his son and wife attended to his business for him! The objection was overruled.
    Mrs. Jones testified, that when Mrs. Cutcher came with said bonds and currency and Mrs. Jones refused to accept them, Mrs. Cutcher left them on the table and went away; a few days after-wards, Jones told her to take them back, which she did. and finding Mrs. Cutcher at home, left them on her bureau. There was evidence, pro and con, as to the set off pleaded. The Court charged the jury as appears in the motion for a new trial. The jury allowed the set-off and found for plaintiff for $705 23 principal, $199 64 interest, and $...... costs of suit.
    Cutcher’s counsel moved for a new trial upon the following grounds:
    1st. Because the verdict is contrary to law and the evidence.
    2d; Because the. verdict is contrary to the charge of the Court in this, to-wit: The Court charged that payments made by defendant and received by' plaintiff to be credited on the note, but which were not so credited, although made in Confederate money, were a full and absolute extinguishment of the note to the amount paid. -
    3d. Because the Court erred in refusing, upon the objection of plaintiff’s counsel, to allow defendant’s counsel to prove by James C. Cutcher that, at the time of the trade, Jones agreed that one-seventh part of the note given for the same should be deducted therefrom upon the settlement and payment of said note, and that this. agreement induced defendant to give the note, and that but for this agreement, he would not have given the note.
    4th. The Court erred in charging the jury that they had the righr to rescind the contract in this case, the pleas in this case being the general issue, payment and set-off, and no relief being pleaded or insisted on.
    5th. The Court erred in charging the jury as follows, to-wit: “Under the law, the necessity brought about by the effects of the war on the business of the country, the influence which it had on the money of the country, the depreciation *which the currency suffered, and the fact that contracts were made during the time that the currency was at a discount, at a depreciated value—I say, that, under the law, a necessity arose of permitting those Confederate contracts to be reviewed, to be reopened, and to permit the juries to hear evidence as to the subject matter of the contract, in order to let them see its whole character, and then, after they have heard evidence about it, as to the value of property about which the contract was made, the value of the currency, the value of the Confederate money at the time the contract was made, and at the time the note became due, in order to enable you to do justice between the parties. Then you may consider this contract between Jones and Cutcher as open to your examination. You are considered in law as now standing personally present when this note was made, and present when each of the credits was made; and if there were any other payments made, the law allows you to consider yourselves present at that time also, standing there as the agents of the law, as the agents of equity to do complete justice between the parties.”
    6th- The Court erred in charging thus: “Then, in settling the equities between the parties, you will first set down the value of the land; then, if you are satisfied from the evidence that there were payments made on the note, examine the dates of the credits, one by one, and ascertain the amount of the credits in good money at the time; then deduct the amount from the value of the land, and the balance with interest would be the amount due.” “I give you this rule by way of suggestion, not direction. You may adopt any other proper mode of calculation to arrive at a proper conclusion.”
    7’th. The Court erred in charging the jury as follows, to-wit: “Your powers as a jury sitting on the trial of this case, you being invested by the law with a power to settle the equities between the parties, your powers, I say, diffuse themselves through the whole case, from beginning to end. Your powers permeate the whole transaction, and may dissolve it as fire dissolves metal. You have the power to mould *a verdict so as to do complete equity between these parties; and equity is what is right between man and man; and in estimating the equities between these parties you may consider, again, the pressure of the times at which the trade was made, you may take into consideration the value of the property, and, still keeping in view the equities of the case as being upon the question of setting aside the contraact and moulding a verdict to do equity between the parties, you may take into consideration the actual value of. money credits which were made on the debts.”
    • 8th. The Court erred in admitting the answers to interrogatories of Jones, the plaintiff,. they being objected to on the ground that his wife and Russell Jones, his son, and agent for the management of this case, were present at the taking of said answers. '
    9th. The Court erred in adding to the charge “that a credit in Confederate money entered upon the note is a full and absolute extinguishment of the note to the amount of the credit,” the following .proviso, to-wit:
    “Provided you are satisfied from the evidence that the plaintiff w.as aware of his rights at the time he received the money, or the credits were entered,” there being no evidence upon the subject of his want of knowledge and of his rights.
    The following charges were given at defendant’s request, and inserted in this rule at the request of plaintiff’s counsel, to-wit:
    “That credits upon the note are an absolute and full extinguishment of the debt to the extent of the credits.
    “That a payment made by the defendant and received by the plaintiff on the note, but not credited thereon, although made in Confederate money, is an absolute and full extinguishment of the note to the’amount of such payment.”
    The Court refused a new trial, and error is assigned on each of said grounds:
    (The cause was continued here for providential cause. At this term, Jones’ administrator, was made a party.)
    *Welborn & Fair; John A. Jervis; H. P. Bell, for plaintiff in error.
    Weir Boyd; George D. Rice, for defendant.
    
      
      CHARGE OF COURT—VERDICT—NEW TRIAL.—Where the amount found does not exceed the actual value of the loss proved, and as the error in the charge did not affect the verdict, it is not good ground for a new trial. Cutcher v. Jones, 41 Ga. 675, 680. In the Central Railroad v. DeBray, 71 Ga. 406, we held that, “as no special damages were found by the jury, and as the verdict was such as to warrant the conclusion, that no such damages entered into the same, the defendant was not hurt by a charge on that subject.” Augusta Factory v. Barnes, 72 Ga. 223-224.
      If the verdict is right upon all the facts and law of the case, a new trial will not be granted, although the charge of the court may be erroneous upon some of the points involved. Cutcher v. Jones, 41 Ga. 675; Lester v. Ga., etc., Railroad Co., 42 Ga. 244; Southern Ins. Co. v. Lewis, 42 Ga. 587; Wilson v. State, 33 Ga. 207; Akin v. Freeman, 49 Ga. 61.
      Where the verdict is sustained, by the evidence, and is not against law, it must stand. Code, § 2940*; Hardee & Co. v. Howard, 33 Ga. 533, 536; Cutcher v. Jones, 41 Ga. 680; Morrison v. Latimer, 51 Ga. 519; Ozmore v. Hood, 53 Ga. 114; Spears v. State, 53 Ga. 252; Reed v. Gallagher, 53 Ga. 456; Western, etc., R. Co. v. Camp, 53 Ga. 596; Goodman v. Henderson, 58 Ga. 572.
    
    
      
      ADJUSTMENT OF CLAIMS—ORDINANCE OF 1865—CON-STITUTIONALITY.-—“By the scaling ordinance adopted by the constitutional convention of 1865, it was provided that in suits instituted for the enforcement of contracts made between June 1, 1861, and June 1, 1865, the value of the consideration of such contract at any time, and value of the currency in which payment was to be made at any time, may be given in evidence. This ordinance is the law of Georgia, and under its provision the court erred in j-estricting the evidence to the value of the confederate money (in which payment was to be made) at the time of the execution of the contract.” Commissions v. Conyers, 108 Ga. 559, 561, 34 S. E. Rep. 351, citing Slaughter v. Culpepper, 35 Ga. 26.
      The scaling ordinance of 1865 has been sustained by this court as constitutional, and has been enforced in a number of cases. High v. McHugh, 38 Ga. 285, citing Slaughter v. Culpepper, 35 Ga. 26; Evans v. Walker, 35 Ga. 117; Taylor v. Flint, 35 Ga. 125; Cherry v. Walker, 36 Ga. 327; Field v. Leak, 36 Ga. 362; Oliver v. Coleman, 36 Ga. 552. To the same effect the principal case is cited in Taylor v. Flint, 35 Ga. 127; Walker v. Whitehead, 43 Ga. 545.
      SAME—SAME—DISCRETION OF JURY.—In Conyers v. Commissioners, 116 Ga. 106, 42 S. E. Rep. 419, it is said; ‘‘This court has held that in the trial of a case to which the ordinance (of 1865) is applicable, the jury has a large discretion in the adjustment of the equities between the parties under the contracts, and where the verdict rendered does substantial justice between the parties, this court will not reverse the judgment of the trial judge in refusing to grant a new trial where no error of law has been committed. See Lloyd v. Cheney, 37 Ga. 497; Green v. Jones, 38 Ga. 347; Cutcher v. Jones, 41 Ga. 675; Mitchell v. Butt, 51 Ga. 274. On the other hand, it has been held that in such cases where the verdict is contrary to the evidence and is grossly unjust, this court will reverse the' judgment refusing to grant a new trial. Slaughter v. Culpepper, 35 Ga. 26; Field v. Leak, 36 Ga. 362.”
      Also, in Oliver v. Coleman, 36 Ga. 552, it is held that under the ordinance of 1865 juries should have a large discretion in adjusting equities to the parties by their verdict; but it is the duty of the courts to see to it that such discretion is not abused and made the instrument of injustice, by granting a new trial when the verdict is strongly and decidedly against the- evidence, and the principles of equity as manifested "thereby. Slaughter v. Culpepper, 35 Ga. 27.
    
    
      
      PAROL EVIDENCE TO VARY WRITTEN1 CONTRACTS.— The well-established rule of law is, that parol evidence is inadmissible to add to, take from or vary a written contract. Williams v. Waters, 36 Ga. 454.
      WRITTEN INSTRUMENT'S—PAROL EVIDENCE TO VARY.—In Mansfield v. Barber, 59 Ga. 854, it is said: “An allegation of fraud, any more than an allegation of mistake, cannot be used as a mere cover to bring in an oral agreement, contemporaneous with the note, and in variance of its terms.” Citing Henderson v. Thompson, 52 Ga. 149; Alston v. Wingfield, 53 Ga. 18; Mitchell v. Universal L. Ins. Co., 54 Ga. 289; Sims v. Crawford, 56 Ga. 31; Cutts v. Johnson, 49 Ga. 370; Sawyer v. Vories, 44 Ga. 662; Sullivan v. Cotton States L. Ins. Co., 43 Ga. 423; Cutcher v. Jones, 41 Ga. 675; Gamble v. Knott, 40 Ga. 199; Newell v. Stiles, 21 Ga. 118; Rodgers v. Rosser, 57 Ga. 319; Logan v. Bond, 13 Ga. 193; Wyche v. Winship, 13 Ga. 208; Griswold v. Scott, 13 Ga. 210; Wynn v. Cox, 5 Ga. 373; Howard v. Stephens, 52 Ga. 448; Simmons v. Martin, 52 Ga. 570; Cook v. North & South R. Co., 50 Ga. 211; Williams v. Waters, 36 Ga. 454. The nrincipal case is also cited in Sims v. Crawford, 56 Ga. 32; Haley v. Evans, 60 Ga. 159.
      It is in vain to have writings, if parties can be allowed deliberately to reduce a contract to writing, and then set un by parol a tntallv different contract. Why will people say in writing that their agreements are so and so, when they are something else? Generally, they, must abide by the writing. Wynn v. Cox, 5 Ga. 373; Logan v. Bond, 13 Ga. 193, 208, 210; Newell v. Stiles. 21 Ga. 118; Williams v. Waters, 36 Ga. 454; McAffee v. Mulkey, 40 Ga. 115; Cutcher v. Jones, 41 Ga. 675; Lester v. Fowler. 43 Ga. 190; Scaife v. Beall, 43 Ga. 333; Sullivan v. Life Ins. Co., 43 Ga. 423; Sawyer v. Vories; 44 Ga. 662; Cutts v. Johnson, 49 Ga. 370,* Louden v. King, 59 Ga. 302; Henderson v. Thompson, 52 Ga. 149; Howard v. Stephens, 52 Ga. 448, 302; Alston v. Wingfield, 53 Ga. 18; Mitchell v. Universal L. Ins. Co., 54 Ga. 289; Delaney v. Anderson, 54 Ga. 586; Sims v. Crawford, 56 Ga. 31; Rodgers v. Rosser, 57 Ga. 319; Haley v. Evans, 60 Ga. 157.
    
   McCAY, J.

Taking all the evidence in this case, we cannot but feel that the verdict of the jury is about right, that substantial justice has been done. We cannot give our assent to some of the charges of the Court, as, for instance, that the jury might reject the contract altogether, and go upon the abstract equity of the transaction; or, that the jury might consider the value of the payment in specie, and only credit the note with that value. Both these propositions have been denied by this Court.

1. But we do not see that the verdict of the jury has been influenced by these illegal charges. They have evidently not set aside the contract, but making it one of the elements in their conclusion, they have recognized the payment, and, in,the main, done equity between the parties.

2. The main question in the case evidently was whether or not the whole debt had not been paid. There was evidence on both sides upon this,.and we think the weight of the- evidence was with the plaintiff. Clearly, therefore, this is not such a case as will authorize a new trial on the ground that the verdict is shockingly against the testimony.

3. As to the amount of the verdict, as we have said in several cases, this Court recognizes a more than ordinary latitude in Confederate contracts, coming under the Ordinance of 1865. These cases stand so much upon their own circumstances, the relation of said money to the property of the country was so different in different localities, that something more than ordinary latitude, in fixing its true value at the time, is of importance in getting at the real truth.

4. It would seem like sticking very closely in the bark to apply section 3820 of the Revised Code, to a case where the ^witness is, himself, a party at interest in the suit. That the presence of his agent, or kinsman, or attorney, should be held prima facie to vitiate the interrogatories, seems absurd. It is proper enough that this rule should be rigidly adhered to when the witness is supposed to be free from bias. But the presence of the party himself, which is a necessity where he is the witness, makes the presence of the others immaterial. This witness comes before the Court known to be biased; the case is his own, and the presence of his agfeirt cannot add anything to the presumption which arises from the connection of the witness with the case.

5. “We see nothing in the Ordinance of 1865 to change the well-settled rule that the terms of a written contract cannot be altered by parol. So far as the word dollars is concerned, it may be explained, and certain other proof may be had going to .settle the rights of the parties, growing out of the uncertainty of this word. But the contract, the agreement of the parties, speaks for itself, as in other cases.”

Judgment affirmed.  