One important point in controversy in this case was, whether the cotton was to be paid for in Confederate treasury notes, or whether it was to be paid for after the war, in the then currency of the country. Upon this part of the ease the Court charged the jury as follows: “If you believe from the evidence that the contract was made when cotton was worth forty or forty-five cents per pound, and that defendant was to receive only twenty-six cents per pound, that would be a strong cireumstanee to show that the note was not to be paid in Confederate money.” This amounts to a charge, that, if the jury believe that a particular fact is established by the evidence, a certain other fact naturally or necessarily follows, or at least it is an intimation by the Court of an opinion, that if the one fact is established the other is proved. We do not pretend to say that the one fact might not very naturally be taken as proved when the other has been established. But we say the Court had no right so to instruct the jury, or to intimate any such opinion. Section 3183 of the Code says; “It is error for any or either of the Judges of the Superior Courts of this State, in any case, whether civil or criminal, or in equity, during its progress, or in his charge to the jury, to express, or intimate, his opinion, as to what has or has not been proved, or as to the guilt of the accused, and should any Judge of said Court violate the provisions of this section, such violation shall be held by the *603Supreme Court to be erroi’, and the decision in such case reversed, and a new trial granted in the Court below, with such directions as the Supreme Court may lawfully give.”
It was urged by the counsel for the defendant in error, that this Court has decided, that it will not grant a new trial for such errors in the charge of the Court below as are immaterial, when substantial justice has been done by the verdict, and that this case is embraced within that ruling. We think not. The Code is imperative, that when this error has been committed a new trial shall be granted. It matters not whether the expression or intimation of the opinion by the Judge as to what has been proved be supported by the evidence or not, or whether it was in fact injurious to the party or not, the result is the same. The only question for ns to consider is, did the Judge express or intimate an opinion, as to what had or had not been proved. If so, a new trial must be granted.
2. We think the charge of the Court, that a witness who has the most interest in noticing and remembering the facts about which he testifies, is to have the preference, was calculated to mislead the jury, though it may have been qualified in a subsequent part of the charge. It would have been better to have instructed the jury, that as between witnesses equally credible, they'should give the most weight to the testimony of him who has the best means of knowing the facts and the least inducement to misstate or pervert them.
3. If this had been an action of assumpsit or debt on a promissory note, the charge of the Court as to the tender might not have been objectionable. But it was an action for the non-delivery of the cotton which plaintiff claims he purchased from the defendant, which was to be delivered when paid for. If the plaintiff’s theory of the case be the correct one, and we think it was, the tender amounted only to an offer on his part to comply with the terms of the purchase, and not to an offer to pay a debt which he was bound to pay independently of any act to be done by the defendant. It follows, therefore, that the portion of the charge in which the jury are instructed that it must be a “continuing tender,” *604and that it must be placed in such a condition that the creditor could accept it at any time, otherwise the effect of; the tender is only to abate the interest from the date of the tender, was not applicable to the case before the Court. We think this view is sustained by the decision in the case of Biggers vs. Pate, 5 Georgia, 175. In that case the Court says: “ Was Biggers bound under the proof in this case to make what might be considered a strictly technical tender in order to maintain this suit? We think not. The delivery of the corn and the payment of the money, were to be done at the same time. They were concurrent conditions to be simultaneously performed. And the doctrine is, that if one party is ready and willing and offers to perform, and the other will not, the first is discharged from performance of his part and may maintain an action against the other.”
In the conflict of testimony which we find in this record, we do not undertake to say what sort of currency should have been offered by Phillips, or when it should have been offered, in compliance with his part of the contract, to give him a right of action against Williams for non-compliance on his part. We only say that the title to the cotton vested in Phillips when the particular cotton sold was designated and identified as the lot embraced in th,e contract and when Phillips offered, if he ever did, to pay the amount agreed upon in the currency intended by the parties to the contract. We think the Court should have so instructed the jury, and left them to apply the evidence and say whether the terms of the contract had been complied with by the plaintiff. If so, the title to the cotton vested in him, otherwise it did not.
4. But in either view of this case the contract was still what we commonly call a Confederate contract. It was made during the war, and within the period of time covered by what is known as the Scaling Ordinance of the Convention of 1865, and it matters not whether the title to the cotton vested in Phillips or remained in Williams, or whether this is properly an action on the case for damages for the nondelivery of the cotton, or an action of trover for its recovery, the Ordinance still applies. In either case the parties had *605the right to give in evidence to the jury the kind of currency in which the payment for the cotton was to be made, and the value of it at any time, and the value of the cotton at any time, together with all the admissions and acts of the parties, and all the other facts and circumstances connected with the whole transaction from first to last, and it was the right and duty of the jury acting under the evidence, after having the case fully and fairly submitted to them by the Court to adjust the equities, the whole equities, between these parties.
As we have laid down the rule governing the wife’s testimony under the Act of 1866, in the case of Jackson vs. Jackson, decided at this term, we deem it unnecessary to repeat it here.
Let the judgment be reversed, and a new trial be granted.