
    Williams vs. Brasfield.
    In cases where there is conflicting testimony, and the credibility of witnesses is to be weighed, this court has uniformly refused to interfere and grant a new trial. Butin cases where there is not only a great preponderance of evidence on one side, but it is all on one side, and that against the verdict, it will grant a new trial.
    Where the covenant is to pay so many dollars in cash notes, the action must be covenant, and the damages the value of the cash notes, but where the contract is for the payment of a given sum, “which may be discharged in cash notes,” if the notes are not paid by the time stipulated, tbe money is then due, and a payment of notes c.annot be after-wards insisted on.
    Where the covenant is to pay in cash notes, the measure of damages is not the rate at which shavers purchase them, nor, on the other hand can the nominal amount be recovered, when the proof shows they are not of par value. The expense of collecting, and tbe difference made in the every day transaction of life, between money and cash notes in the sale of property, is the true criterion of their value.
    This is an action of covenant founded on a writing under-seal, executed by Richard C. Williams and Allen Williams, whereby they promised, on or before the 25th of December next, after its date, to pay to Caleb Brasfield or order, thirteen hundred dollars in cash notes, on good and solvent men,' in Weakley county, to be endorsed by Caleb Williams.
    The jury found a verdict for thirteen hundred dollars, and interest thereon, from the time the obligation became due.
    From the bill of exceptions, it appears that on the trial, the defendant offered to prove what cash notes on good and solvent men, endorsed by Williams, could be purchased for at the time of the breach of covenant, which evidence was rejected by the court, but the witnesses were permitted to prove what was the value of such notes. Several witnesses were examined as to the value of cash notes, at the time of the breach of contract. Four witnesses proved that they were not worth as much as gold and silver, by from ten to fifteen per cent. One witness proved,that gold and silver was worth from' four to five per cent, more than the cash notes; but there was no evidence to show they were of equal value with gold and silver.
    The court in substance, charged the jury that they must not act upon their private opinion; but musí take the evidence altogether, and give such verdict as it would authorize.
    The defendant moved for a new trial, which motion was overruled by the court
    
      B. Totten and W. L. Williams, for plaintiff in error.-
    Fitzgerald, for defendant.
   Green, J:

delivered the opinion of the court.

In this case we are all of opinion that the court erred in refusing to grant anew trial. It is true, that this court feels-great reluctance to disturb the verdict of a jury, where the circuit court has refused a new trial. In most cases there is conflicting testimony, and the credibility of witnesses is to be weighed, in such cases this court has constantly refused to interfere with the verdict, always declaring that it would set aside the verdict of a jury, in cases only, where a great preponderance of evidence was against it. Wo still adhere to this determination, and have no intention of weakening the authority-of former adjudications upon the subject. In this case there 'is not only a great preponderance of testimony on one side, but it is all one side, and that against the verdict. Every witness proved that such cash notes as those agreed to be paid, were worth less than the same nominal amount of gold and silver. Apply this evidence to the law of the case, as adjudged in the case of Murray vs. McMackin, 4 Yerg. Rep. 41, and the necessary consequence would have been, a reduction of the verdict below the sum named in the covenant, at least four or five per cent.

Upon this subject there seems to have been a disposition oil the trial of cases of this description, to adopt one of two extremes. While the one party has sought to fix the damages at the value of the notes, according to the rate at which shavers purchase them; the other party has insisted on a recovery for the nominal sum mentioned in the covenant. The true criterion was stated in the case of Murray vs. M’Mackin. If, in the every day transactions of life, a debt on a solvent man could not be paid in its nominal amount of cash notes, or if in the purchase of a horse, worth one hundred dollars in money, the custom of the country would fix his value at one hundred and ten or fifteen dollars in cash notes, that would prove the notes to he worth less than money, and would he a legitimate means of ascertaining their value.

Where the covenant like the one under consideration, and the one in Murray vs. McMackin, is for the payment of so' many dollars in cash notes, the action must be covenant, and the damages of course, must be the value of the articles agreed to be given. But when the writing is for the payment of so many dollars, which may be discharged in cash notes, money is the thing agreed to be paid, and the cash notes, are collateral thereto. If the party pay cash notes at the day, he has a right to do so, hut if not, it is a money contract? and a payment in notes afterwards cannot be insisted on. In such case, debt would lie for the money, but whether debt or covenant be brought, the recovery should be for the full amount agreed to be paid. Let the judgment be reversed and the cause remanded for a new trial.

Judgment reversed.  