Linton & Co. vs. Williams.

that the evidence was insufficient to entitle the plaintiff to a verdict, who was, on motion of counsel for defendants, compelled to submit to a nonsuit. Was this a nude pact, and were not the defendants bound by their contract? Judge Holt reversed the decision of the Court below. He delivered the following opinion:

"This Court cannot perceive how a contract, for the sale of one hundred barrels of flour, for five hundred and fifty dollars, can, with much propriety, be called a void agreement. The commodity and the price are both fully stated, It was certainly within the power of the contracting parties to stipulate the time of delivery; and this they have done with sufficient certainty. The plaintiff might, by the terms of the note or memorandum, postpone the delivery to the end of the winter. He must then receive and pay. Neither party had the power to repudiate. If both parties had signed this paper, it might have seemed plainer, that both were bound by it. But the liability of neither would have been thereby increased. One signed, and the other accepted it And there is in it a perfect mutuality of undertakings."

In confirmation of Judge Holt's opinion, we would add, that it is laid down by Mr. Greenleaf, that it is not necessary that the agreement or memorandum, to be binding, should be signed by both parties, or that both be legally bound to the performance; for the statute only requires that it be signed by the party to be charged therewith; that is, by the defendants, against whom the performance or damages are demanded. Greenleaf on Ev. 1 vol. sec. 268. And in support of this proposition, he cites the case of Allen vs. Bennett, S Taunton, 169; Shirley vs. Shirley, 7 Blackford, 452; Davis vs. Shields, 26 Wendell, 341; which fully sustain the doctrine.

Chancellor Kent maintains the same position. He says, the signing of the agreement by one party only, is sufficient, provided it be the party sought to be charged. For he is estopped by his signature from denying, that the contract was

Linton & Co. vs. Williams.

validly executed, though the paper be not signed by the other party, who sues for a performance. 3 Kent's Com. 510, and cases there cited. And Lord Manners, in 2 Ball & Beatty, 370; Sir William Grant, in 3 Ves. and Beam. 192; Sir William Plummer in 2 Jac. and Walk. 426; Ballard vs. Walker, 3 Johns. Cas. 60; Selon vs. Slade, ib. 265; Clayson vs. Bailey, 14 Johns. 487; Douglass vs. Stears, 2 Nott & McCord, 207; Palmer vs. Scott, 1 Russ. and Milne, 391; Champion vs. Plunar, 1 New Rep. 252; Egerton vs. Mathews, 6 East. 307; and Sanderson vs. Jackson, 2 Boss. & Pull. 238; Ross on Contracts, 85; 2 Boss. & Pull. 447; 1 East. 203; 23 Pickering, 400; 2 Hall, 405; 4 Iredell, 257; 3 Humphrey, 19; 5 Ga. Rep. 171; and 1 Kelly, 220, are all authorities to the same point.

In this case the contract is full and complete. All the terms of it can be collected from the writing. The name of Williams does appear in it. True, it is put there by the defendants, but Williams, by accepting the contract, as thus written, ratifies the use of his name. Under these circumstances, the signature, in writing, by Linton, thereby binding himself, is a good consideration for the promise on the part of Williams, to pay the price stipulated for the flour. He might call for it at any time during the winter. He was bound to receive the flour, and pay for it, by the end of the winter.

We hold, therefore, that there was not only a sufficient consideration for the promise, but that the contract, as executed, was not within the statute of frauds.

In Allen vs. Bennett, it was said by one of the Judges that the statute was chiefly made for the benefit of buyers.

Judgment affirmed.

Whilden vs. The State.

JOHN B. WHILDEN, plaintiff in error, vs. THE STATE OF GEORGIA, defendantin error.

[1] There was a fight between two persons. They were separated. Thirty minutes afterwards, whilst one of them was undergoing an examination, as to his wounds, with his pantaloons down, he was attacked by the other.

Held, that the two fights were distinct, and that the first made no part of the second, and therefore, that on an indictment for the second, evidence of the first was not admissible,

[2.] On an indictment for stabbing, the jury may find a verdict of guilty of an assault and battery.

Indictment for stabbing, from Burke County. Tried before Judge HOLT, April Term, 1858.

John B. Whilden was indicted in the Court below for stabbing A. Floyd.

Upon the trial the Attorney General, on the part of the State, offered as a witness,

A. Floyd, the prosecuter, who testified, that on the 18th of July, 1856, defendant came up to him (witness) with a stick in one hand and a knife in the other, and made an assault upon him by striking him with the stick and cutting him in two places with the knife-one on the right arm, about 3 inches wide, and a quarter deep, and a slight wound on the left arm. The parties had had a previous difficulty on that day, about 30 minutes before, or a short time, not certain as to the length of time; the parties had not cooled; witness was still excited; had been separated. When defendant made second attack, witness' wounds were being examined by Mills H. Brinson; witness' pantaloons were down for that purpose.

Upon cross examination of witness, defendant's attorney asked "whether prosecutor did not stab defendant in the first difficulty." To which the Attorney General, on the part of the State, objected, on the ground that it related to a distinct and separate transaction, disconnected with the case at bar. The Court sustained the objection, and defendant excepted.

Whilden vs. The State.

Defendant's counsel then asked "what occurred between the parties in the first difficulty." The State objected, and the Court sustained the objection, and defendant excepted.

Mills H. Brinson testified, that he saw the difficulty between the parties. At the time of the second difficulty he (witness) was standing near Floyd, examining the wounds. upon him: Floyd's pantaloons were down for that purpose. Defendant came up and struck Floyd with a stick. As defendant came up, witness saw blood upon his stomach; looked fresh. The time between the first and second difficulties was short, from 20 to 30 minutes. He (witness) cannot be precise as to the time.

Upon cross examination, defendant's counsel asked witness"what occurred between the parties in the first difficulty." To this the Attorney General objected on the same ground as before. The Court sustained the objection, and defendant's counsel excepted.

The case being closed, defendant's counsel asked the Court to charge "that if they believed the defendant guilty of stabbing the said Floyd, there could be no conviction for assault and battery."

The Court refused so to charge, but charged the jury" that the Attorney General might waive the felony, and that the jury might find defendant guilty of assault and battery." To this charge the defendant's counsel excepted. The jury found the defendant guilty.

Whereupon defendant's counsel filed his bill of exceptions, saying that the Court erred:

In disallowing the question by defendant's counsel, "whether prosecutor did not stab the defendant in the first difficulty?"

Also, in disallowing the question, "what occurred between the parties in the first difficulty?"

Also, in disallowing the question to the second witness, "What occurred between the parties in the first difficulty?"

Whilden vs. The State.

In refusing to charge the jury as requested by defendant's counsel, and in charging the jury "that the Attorney General might waive the felony, and that the jury might find defendant guilty of assault and battery."

SHEWMAKE; and A. H. H. DAWSON, for plaintiff in error.

McLaws (Attorney General) aud JONES & STURGES, con

tra.

By the Court.-BENNING, J. delivering the opinion.

The first question is, was the Court below right in rejecting the testimony offered as to the first fight.

The indictment was founded on the second fight.

Unless the first fight made a part of the second; that is, unless it was a part of the res gestae, it is clear, that evidence of it, was not admissible. If not a part of the res gestae, the first fight could not possibly constitute a defence in a case founded on the second.

Did the first fight make a part of the second?

The Judge certifies, "that both witnesses distinctly stated the interval between the first and second fights, to be half an hour."

The parties had been "separated."

Floyd, the party assaulted in the last fight, was at the time of that assault, with his pantaloons down, undergoing an examination of the wounds received by him in the first fight. [1.] These being the facts, we think, that the second fight was a new fight, making no part of the first.

Consequently, we think, that the Court was right in excluding evidence of the first fight.

The indictment was for stabbing. On such an indictment, were the jury at liberty to find a verdict of guilty of an assault and battery? The Court told the jury that they were. This is the only other question.

It is laid down by Lord Hale as a general principle, that