The error assigned to the judgment of the Court below, is the granting a new trial on the grounds stated in the motion therefor. The defendant appeared in Court and' .pleaded to the merits of the action without pleading to the jurisdiction of the Court, and without excepting thereto, and thereby admitted the jurisdiction of the Court of Randolph county in which the suit was instituted: Code, 3409. The defendant pleaded the statute of frauds in bar of the plaintiffs’ right to recover. By the 1940th section of the Code, it is declared that “any contract for the sale of goods, wares, and merchandise in existence, or not in esse, to the amount of $50 00 or more, except the buyer shall accept part of the goods sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, must be in writing, signed by the party to be charged therewith, or by some person by him lawfully authorized.” The foregoing sentence of the Code does not extend to the following cases, (to-wit:) where the contract has been fully executed, where there has been performance on one side, accepted by the other in accordance with the contract, where there has been such part performance of the contract as would render it a fraud of the *party refusing to comply if the Court did not compel a performance: Code 1941. There is sufficient evidence in the record to authorize the jury to have found by their verdict that the defendant made a contract with Crews in the fall of 1865, for the delivery of forty thousand cross-ties, to be paid for at the time of delivery at the estimated value of the same, and that Crews had transferred that contract to the plaintiffs; that the defendant received from the plaintiffs under that contract, and paid for thirty-four hundred and twelve cross-ties, at the estimated value of the same at the time of the delivery thereof- and that the defendant’s agents knew that the plaintiffs were getting and delivering the cross-ties under and in pursuance of the Crews contract; and when in June, 1866, the defendant notified the plaintiffs that no more cross-ties would be received from them for the road, one of the plaintiffs insisted on his right to complete the contract, and said that if the company did not allow the plaintiffs to finish it, they -would sue the company for a breach of the contract. Heard, the agent of the defendant, did not, at that time, deny the contract, but replied that if they did, it would be impossible for them to get any more cross-ties for that road.
In our judgment, there is sufficient evidence in the record of the recognition of the transfer of the Crews contract to *76the plaintiffs, by the defendant, and of such part performance of it by the plaintiffs, as well as on the part of the defendant, as will take the case out of the statute of frauds and require the performance of the contract on the part of the defendant; the more especially, as it appears from the evidence, that the plaintiffs had expended a considerable sum of money in making their, arrangements and preparation for the performance of the contract on their part: Gilmore v. Johnson, 14th Georgia Reports, 683; Chastain v. Smith, 30th Georgia Reports, 96.
In regard to the -damages which may be recovered for a breach of the contract, the general rule is, that remote or consequential damages are not allowed whenever they can not be traced solely to the breach of the contract, or unless they áre capable of exact computation, such as the profits which *are the immediate fruit of the contract, and are independent of any collateral enterprise, entered ■into in contemplation of the contract; but any necessary expense which, one of two contracting parties incurs in complying with the contract, may he recovered as damages: Code, 2899. The question of damages being one for the jury, the Court should not interfere, unless the damages are either so small, or so excessive,. as- to justify the interference of gross mistake or undue bias: Code, 2896. According to the evidence contained in the record, the verdict of the jury in this case is not so excessive as to justify the interference of gross mistake or undue bias on the part of the jury, as will authorize the Court to interfere with it and set it aside.
When the verdict of the jury is decidedly and strongly against the weight of the evidence, although there may appear to be some slight evidence in favor of the finding, the presiding Judge may exercise sound discretion in granting or refusing a new trial: Code, 3666. If the verdict is not decidedly and strongly against the weight of the evidence, it is a.legal verdict, and the Court has no discretion to exercise, or legal authority to set it aside. Before the.exercise of his discretion can be invoked, either to grant or refuse a new trial in such cases, the verdict must be decidedly and strongly against the weight of the evidence.
Ret the judgment of’the Court below, granting a new trial, be reversed.