By the Court. —

delivering the opinion.

On the trial of this cause before the Judge of the City Court of Savannah, counsel for the defendant objected to the admissibilty of certain parts of the evidence of the witness, Augustus Robert, in this: That the statements of the witness, as to the account sued upon, were secondary, derived •from plaintiffs, from invoices and letters, that were not ■introduced in evidence, or accounted for. The testimony is •open to this objection, but as. no fact, materially affecting the issue, is drawn out by this reference, we have not thought it necessary to consider the objection. Neither is it necessary ■to consider the motion for nonsuit, as the merits of that ques.tion, and all others in the case is involved in the fourth and last exception, namely: That "the verdict is without evidence, .and contrary to, evidence and law. This exception, we think, was well taken, and ought to have been sustained by the •Court below.

The action was brought for the recovery of the loss sustained 'by the non-delivery of 100 sacks of wheat for which the plain-biffs had paid the defendants.

It appears from the evidence of the witness, Robert, who ■was clerk and bookkeeper for the plaintiffs, that the defendants, in the Spring of 1857, purchased for the plaintiffs four •thousand and eighty sacks of wheat, at a commission of 5 per cent., for which the plaintiffs paid them. Of this only three thousand nine hundred and eighty sacks were forwarded ■to, or received by, the plaintiffs. This part, of the plaintiffs5 case is sufficiently made out; that is, that there was 100 sacks short; but how much these sacks contained, or •the price paid by plaintiffs to defendants for the contents of the sacks, does not appear, nor did the witness know. He ;says he estimated th# *osts of the various lots purchased, rand of the quantity contained in the whole lot, and from this •estimate he deduced the average cost per bushel, as well as the average contents of each sack. It was in this wáy the witness made up the account, and he says he believes the same to be correct as stated, and justly due by defend*742ants to plaintiffs. But this belief is founded altogether on the estimate made by the witness from the invoices, letters, etc., before him. This belief of the witness was not evidence of the fact for the jury, however conclusive it may have been to the witness. The jury should have had these invoices, letters, etc., before them, so as -to have made the calculations for themselves; had they have come to the same conclusion as the witness, from their own estimates, upon an examination of the same date, the verdict would have' been good; but they might have come to a different one. The Judge of the City Court excluded from the jury that part of the witness’ evidence as to the average contents of the sacks, and the average cost of the wheat per bushel and very properly, we think. This testimony being out, there was absolutely no evidence before the jury of the contents of the sacks, or the cost of the wheat therein. Yet, the jury, by their verdict, say that there was two bushels in each sack, that cost one dollar and twenty cents per bushel. That much of the finding, therefore, was without evidence, and a new trial must accordingly be granted.

JUDGMENT.

Whereupon, it is adjudged by the Court, that the judgment of the Court below be reversed, on the ground, that the Court erred in not reversing the judgment of the City Court. A new trial should have been granted on the ground, that the verdict was without evidence.