37 Ga. 26 | Ga. | 1867
I. We think the Court erred in non-suiting the plaintiffs. There certainly was evidence sufficient to make out a prima facie case of a contract between the company and the plaintiffs; and where this is the case, a non-suit should not be granted; Mitchell vs. Rome Railroad Company, 17 Ga. Rep., 574; Mounce vs. Byars, 11 Ga. Rep., 192-3. The plaintiffs had made out by proof such a case as entitled them to go to the jury. There Avas some evidence to sustain the allegations in their declaration. There may be many difficulties in the Avay of their recovery, but these are matters not for the decision of the Court, but of the jury.
2. The Court decided that this contract Avas void because not in writing. To this, the reply is, that the evidence tended to prove a part performance of the parol contract on the part
Judgment reversed.