the part of the plaintiffs certainly amounted to a clear and unequivocal recognition by them of the bill of lading as the contract under which the cotton was actually shipped from Columbus, and therefore we think it must be regarded as embracing the final contract on which both the plaintiffs and the defendant acted touching the business of transporting this cotton. This bill of lading was not produced nor offered in evidence, nor were its contents proved. Therefore the plaintiffs entirely failed to show what was the real contract under which the cotton was shipped. In order to prove the breach of a contract, it is absolutely essential to show first what the contract was. As the plaintiffs failed to do this, they could not show that the contract, whatever it was, was broken by the failure of the defendant to have the steamer Empire sail from West Point, Va., on October 5th, 1889, with the cotton on board. Without having this bill of lading before us, we are unable to say that, by the terms of the contract between the plaintiffs and the defendant, it was stipulated that the steamer should sail on that particular day. It is true, as stated, the declaration does allege that such was the contract, and sets forth the facts constituting a breach of the same; but the plaintiffs were not entitled to recover for this alleged breach, for the simplest and best of all reasonsthey did not prove it. 2. The plaintiff's insisted upon a right to recover because, as they contended, they were induced to purchase and ship the cotton at the solicitation of one Haile, representing the defendant as soliciting freight agent, and upon the faith of a contract made by him in the defendant's behalf, to the effect that the steamer should positively sail on the 5th day of October, 1889. In support of this contention, they offered in evidence a letter addressed to them by Haile, of which, omitting the heading, the following is a copy: "Columbus, Ga., Sept. 16, '89. "Mess. Bedell & Bowers, City. 161 T. M. Engagement No. 42. "Dear Sirs: 1000 bales of cotton from Columbus, Ga., to Liverpool, England, Str. Empire sailing from West Point, Va., Oct. 5th, 1889; through rate ($1.10) One 10-100 dolls. per hundred pounds. "We have this day made the above engagement for you, and same is confirmed. 66 Respy., J. C. Haile, Sol. Agent." This letter was rejected by the court. Plaintiffs also offered in evidence, for the purpose of proving the alleged contract, testimony as to various conversations and stipulations between themselves and Haile, some of which occurred prior to their purchase of the cotton, and all prior to the execution and acceptance by them of the bill of lading. This evidence was also rejected. We think the court was right in excluding both the letter and the other evidence offered. The declaration did not allege any solicitation on the part of Haile by which the plaintiff's were induced to purchase and ship the cotton, or that they in fact did purchase and ship the cotton because of such solicitation, or upon the faith of any representations or promises by Haile in this respect. The only contract declared upon was the contract of transportation already mentioned. The evidence rejected was, therefore, irrelevant; and besides, all the conversations and stipulations referred to were, so far as we are aware, merged into the final contract evidenced by the bill of lading. 3. Numerous questions were made by the bill of exceptions, to which no specific allusion has been made, because to do so is unnecessary. The plaintiffs failed to prove by legal evidence the contract declared upon, and therefore, it was not only right to grant a nonsuit, but this was the only proper disposition to be made of the case. Judgment affirmed. 94 271 FARKAS V. DUNCAN. The owner of two mare mules called respectively "Dilsie" and April 23, 1894. Argued at the last term. Levy and claim. Before Judge BOWER. Dougherty superior court. April term, 1893. D. H. POPE, for plaintiff. R. HOBBS and W. T. JONES, contra. LUMPKIN, Justice. In addition to the facts briefly summarized in the head-note, it is also proper to state that there was a conflict in the evidence as to whether the mortgagor intended the mortgage to apply to the mule he called "Dilsie," or the one he called "Kate," and upon this single issue a verdict either way would have been warranted. This question, however, was not really submitted to the jury, because, by his charge, the judge, in effect, instructed them that if the mortgagee accepted a mortgage upon a mule described in the mortgage as bearing the name of "Kate," he could under no circumstances subject to the mortgage a mule bearing the name of "Dilsie," and that consequently, the purchaser from the mortgagor of a mule bearing the latter name would, in any event, be protected. In other words, the court made the case turn entirely upon the question of 120 879 94 27 f127 133 name, ignoring altogether the question of color. In doing this, we think the court restricted the jury within limits too narrow to enable them to pass fairly upon the issues involved. It would seem that the color of a mule is more important as an element of description than a mere name. The color is certain, permanent and easily observed. The name is arbitrary, not discoverable by inspection, and may be changed, or even falsely stated in the first instance for a fraudulent purpose. We do not mean to say that anything of this kind was done in the present case; but we entertain no doubt that the case should have been submitted to the jury so that, taking into consideration the evidence as to names, colors, and all other facts and circumstances, they might be enabled to fairly decide the question of primary importance, viz: whether or not the mortgage really applied to the mule called "Dilsie." If, under proper instructions from the court, the jury should find it did not, that would end the case in claimant's favor. On the other hand, should they find the mortgage did apply to "Dilsie," and was so intended, it would then be a question for the jury whether, notwithstanding the fact that the mule mortgaged was erroneously described in the mortgage as "Katie," the description contained in the mortgage would be sufficient to so identify the mule thereby intended to be covered as to put a purchaser on notice. The truth is, the mortgage before us does not accurately describe either of the mules in question. It appears that the one called "Kate" was not a bay, and that the one which was in fact a bay was called "Dilsie." Still, it would not do to say absolutely that the mortgage was ineffectual to create a lien upon either. The maxim falsa demonstratio non nocet-"mere false description does not make an instrument inoperative"-applies. See Broom's Legal Maxims, 629, 630, where the doctrine is thus announced: "Falsa demonstratio may be defined to be an erroneous description of a person or thing in a written instrument; and the above rule respecting it may be thus stated and qualified: as soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by the particular instrument, a subsequent erroneous addition will not vitiate it: quicquid demonstratæ rei additur satis demonstratæ frustra est. The characteristic of cases within the principal maxim being that the description so far as it is false applies to no subject at all, and so far as it is true applies to one only." Numerous inaccurate descriptions occur in wills, but these documents are nevertheless, often set up and established in spite of the same. Any one desirous of pursuing the investigation further may consult with profit the cases cited on page 630 of the work just referred to. See, also, Burge v. Hamilton et al., executors, 72 Ga. 568. In the brief for defendants in error in that case, which was prepared by the present Chief Justice, who was at that time one of their counsel, numerous cases are cited on the general doctrine of the maxim above quoted. Ibid. 597-8. Our conclusions in the present case are also supported by the text of Jones on Chattel Mortgages (4th ed.), §§53–55. In Nichols v. Hampton, 46 Ga. 253, it was held that a paper providing for a lien on a "bay mare," and showing that the mare was purchased by the mortgagor from the mortgagee, might be sufficient to put on notice any one who would read the paper. Judge McCAY said: "The description will apply to any bay mare; but there is another description added, to wit: the bay mare sold by the plaintiff to Johnson." In Stewart v. Jaques, 77 Ga. 365, the words, "one bay mare, two mare mules, one horse mule," used in a mortgage, were held insufficient to put on notice, by its record, one who purchased from the mortgagor a black horse mule and a black mare mule of stated ages. There, no color with refer |