By the Court.
Benning J.delivering the opinion.
The question is, was the Court below right in overruling the motion for a new trial ?
That motion wás put on grounds which may be reduced into these three :
1st. That the verdict was not authorized by the evidence.
2d. That the defendants (below) were rejected when offered as witnesses in their own behalf.
3d. That interest was given in the verdict.
As to the first of these three grounds:
The verdict was for $2,397 10 cents, of principal, and $750 37 cents of interest and cost. Was the evidence such as to warrant this verdict ?
Ruth E. Reid was entitled to a verdict for the difference between what she had advanced to Field & Adams, or paid on their account, and what she had been repaid by them. She was not entitled to a verdict for sums for which she had merely become liable on their account, but which she had not paid.
But in her account she charges Field & Adams with such sums, as thus:
She shipped two of the lots of cotton, one of twenty-eight bales and the other of seventy-one bales, to aNew York house, and received from that house an advance of, say $1,488 98 & *326$3,85S 30=$5,347 28, on the two lots. That house sold the two lots for, say $1,051 26 & $2,878 05=$3,929 31. This cotton, therefore, lacked of paying the advance on it, the difference between $5,347 28 and $3,929 31, and that was $1,417 87. For this'last sum, therefore, she was liable to the New York house. And she settled that sum with the New York house; but settled it at twenty-five cents in the dollar.
All that she paid, then, on account of Field & Adams, in respect to these two lots oí cotton, was this twenty-five per cent of the said sum of $1,417 87. Perhaps she may have also paid the expenses of the shipment of the cotton.
At any rate, she charges Field & Adams in her account, with the whole sum of $1,417 87, instead of with only twenty-five per cent, of that sum.
And the jury probably allowed the charge.
She also shipped one lot of cotton to a house in Philadelphia, a lot of eighty-three bales; and received from that house an advance on the lot of, say, $4,505 21. That house sold this lot for $3,189 71. This lot therefore lacked $4,-505 21 — $3,189 71=$1,416 50 of paying the advance made on it. For the sum of $1,416 50, therefore, Ruth E. Reid became liable to pay the Philadelphia house, on account of Field & Adams.
But this sum she had not paid them at the commencement of the suit; and yet this sum makes apart of the account against them, on which the suit was brought; and it is a sum that was probably allowed to her by the jury in the verdict.
At all events, it is safe to say, that if the jury did not take the charges for the losses on these two shipments into the account, in making up their verdict, they must have made up their verdict, in good part, without evidence. For if we deduct from the account what ought to be deducted from it in respect of these items, the balance in favor of Ruth E. Reid will be much less than the amount of the verdict.
*327[1.] We think, then, that according to the evidence, the verdict was two large; and therefore, that the ground for the motion, that says that the verdict was not supported by the evidence, was a good ground.
[2.] Ought the Court below to have allowed the defendants to be sworn as witnesses in their own behalf? We think not The doctrine of necessity relied on by the counsel for the plaintiffs in error, is a doctrine confined to a limited number of cases, and this case is not of the number.
Ought the jury to have allowed interest ?
If the demand was a liquidated one, they ought; if it was not a liquidated one, they ought not.
The demand was a liquidated one, if it was agreed to by Field & Adams.
And it was, prima facie, agreed to by them, if the account sued on, containing it, was rendered to them, and was not in some way objected to by them. If only certain parts of it were objected to, it was liquidated as to the other parts.
Whether the account, in whole or'in part, was or was not objected to by Field & Adams, was a question for the jury.
We think the Court ought to have granted the motion for a new trial; there being, as we think, one good ground for the motion — the ground in relation to the sufficiency of the evidence.
Judgment reversed.