Trippe, Judge.
The third, fourth and fifth grounds in the motion for .a new trial will be first considered. They present two questions: 1st. Can the action of assumpsit, under the facts of the case, be maintained, or should it have been in trover or trespass? 2d. If assumpsit can be sustained, what is the measure of the recovery ?
1. Section 2955 of the Code says “when a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other.” Is not this a transaction of that sort ? There was a contract for the sale of cotton stored in one warehouse, which the buyer was to remove. In doing so, it is charged that he got cotton which was in another house. The value of this last cotton is claimed in this action. Here, then, there was a contract, and one party in carrying it out committed a breach of it. It is not by any means as strong a case as Blalock, et al. vs. Phillips, 38 Georgia, 216, in which it was held that the plaintiffs could waive the tort and sue on a contract express or implied: See, also, 17 Georgia, 103. It has been held, that where “a person buying three pieces of goods has double pieces delivered to him by mistake, and takes them awajq the vendor may recover the difference of value, if not under a contract for goods sold and delivered, still under that for money had and received :” 1 Stephens’ Nisi Prius, 276, note *399c. Chief Justice Tindal, in Young vs, Marshall, 8 Bingham, 43, lays down the broad principle as one generally known and acknowledged in Westminster Hall, “that a party is not bound to sue in tort where, by suing in contract, he produces no injury to the defendant.” In this case the action of assumpsit was a benefit rather than an injury to the defendant, as appears from the next question upon the point of the measure of damages.
2. As to the measure of plaintiffs’ recovery in this form of action, we think there was error in permitting that to be fixed by the value of the cotton at the time a demand may be made for a settlement. Had trover been brought, the-jury would have had a large margin. They could have given the highest value proven down to the time of trial.'' But if so, no interest could have been allowed. It is stated, in1 the head-note that the measure of recovery in this case! was the value of the cotton at the time it was taken by the,, defendant, with interest! It was so held in the analagous case in 38 Georgia, 216, already referred to. Here the plaintiff relies upon a contract express or implied, or upon a breach of contract. In such a case, where an amount ascertained j would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time till j the recovery : Code, section 2945.
3. The defendant offered in evidence the record of another suit in favor of plaintiffs against the defendant, in which there was a recovery by the former of $3,117 68. The court rejected the testimony. The object of the evidence was to show that the cotton now sued for was covered by that judgment. If the claim in the action on trial be solely for cotton taken from a certain house, and the testimony relied on be confined to that, and the jury restricted to such cotton in considering their verdict, then a judgment in another action for cotton obtained at another and different place, or in other words, for other cotton, is irrelevant testimony, and cannot affect this cáse.
4. But if it be not clear that the cotton sued for, or any *400part thereof, is not covered by such judgment, then the record should be admitted, and the question of former recovery be left to the-jury, under all the proof in the case.
5. The sayings of Davis, the agent of defendant, as to cotton having been received by the defendant, which came from the river warehouse, was admitted over objection by defendant’s counsel. Plaintiff’s action was for cotton which he alleged had bee'n taken from that house, when the defendant was entitled only to that which was stored in another house. The controversy was on that point. To prove it, the sayings of the agent, made some eighteen months after the cotton is said to have been taken, were admitted in evidence. Were they competent? We think not. The agent is living,' and was sworn on the trial. It is provided in the Code, section 2206, that “ the declarations of the agent as to the business transacted by him are not admissible against his principal, unless they were a part of the negotiation, and constituting the res gestee, or else the agent be dead.” This is but an affirmation of the ancient rule, and often recognized by this court: 24 Georgia, 211; 26 Ibid., 11; 29 Ibid., 399 and 461. The case in 26 Georgia, 11, was whether the sayings of a conductor of a railroad train, whilst still in office, rvere admissible as to a past occurrence happening on his train. It was held they were not. In Sweetwater Manufacturing Company vs. Glover, 29 Georgia, 399, the sayings of two of the chief agents of the company, one the principal agent and the other a superintendent of the hands, with other powers, Avere admitted against the company on the trial in the superior court. Upon a review of the case in this court, it was said in the decision granting a new trial and reversing the holding on this point, “that neither these nor any other agent of the company could say anything to bind them except what he says about his appointed business while he is doing it. It must be said about his appropriate wprk, and said dum fer-vet opus. * * * The principle on which an agent’s sayings are' admitted against his principal at all, is, that they are part of the res gestae.” These decisions and the long set-*401tied rule, must determine the question made on this point in this ease, although Davis, the agent, was superintendent, at the time the declaration is alleged to have been made. The transaction was over — eighteen months had passed — and no agent, after that length of time, can, by a mere declaration, impose a liability on his .principal, and by that declaration establish a fact on which ¡j recovery is to be had.
Judgment reversed.