Wells v. Drayton

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 *113happen, 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.

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