* Headnotes 1. New Trial, 29 Cyc., p. 827; 2. Exchange of Property, 23 C.J., Section 96. The appellant, Evans, owned a Fordson tractor, and the appellee owned a Waterloo Boy tractor. A discussion arose between them as to trading the machines. When the first conversation took place, Wenger would not trade unless and until another party who had an option to purchase his tractor exercised or declined the option. Afterwards Evans went to Wenger's place and a trade was made, in which Evans claimed that Wenger told him that the Waterloo Boy tractor was in good *Page 58 shape but needed piston rings and tightening up and a new coat of paint; that he took Wenger's tractor home from Wenger's place under its own power; and that the next day he was operating the tractor in running a saw-mill and used it nearly one and three-fourth days, when the bearings burned out, and he then took the tractor down to see what the trouble was, and found between the oil base and the crank-case a hole broken out about two inches long and one and one-half inches wide on the inside; that it was an old patch with shellac and waste, and as soon as the tractor was started running the shellac and waste burned out; that he sent his sons to see Wenger, and he refused to take the Waterloo Boy tractor back and refused to pay for the repairs on it; that when Evans' sons told him what happened, he said he knew about the hole in the tractor before the trade but forgot to tell Evans about it. Thereupon Evans sued out a writ of replevin for the Fordson tractor formerly owned by him and returned the Waterloo Boy tractor to Wenger's place and left it there.
On the trial the plaintiff testified that the Fordson tractor which he replevied was worth two hundred dollars, suit being filed in the justice court, and appeal taken from that court to the circuit court. Plaintiff's son testified to the statement by Wenger, the defendant, that he (Wenger) knew of the defect in the Waterloo Boy tractor at the time the trade was made, but forgot to tell Evans about it. Evans testified to the statements above set forth, and that he relied upon Wenger's statements as to the condition of the Waterloo Boy tractor. Evans also stated that in the first conversation at Gulfport that Wenger said he would guarantee that if one hundred and fifty dollars was spent on the Waterloo Boy tractor it would be in good condition. Evans testified that on the day of the trade he asked Wenger what was the matter with the Waterloo Boy tractor, and he told Evans it needed new piston rings, tightening up, and a new coat of paint; that the party with them said that if *Page 59 that was all they could tighten up the machinery, and that it was not necessary to paint the tractor for their purposes. Wenger testified that he did not make that statement, that he told Evans he could take the tractor, that there it was, he could take it or leave it; that he (Wenger) did not represent its condition, but stated that if one hundred and fifty dollars was spent on it in repairs that it would be all right. Wenger had two witnesses who testified also to Wenger's version of the trade and stated that Evans said he would take it in that condition, and that if he got stung that was all there was to it. On the first trial on this testimony the jury found for plaintiff and the value of the Fordson tractor to be two hundred dollars. Claimant's affidavit was filed before the first trial by one Geil, who purchased the Fordson tractor from Wenger.
A motion was made for a new trial by Wenger on the ground that the court erred in giving the following instruction for the plaintiff:
"The court instructs the jury for B.A. Evans that if they believe from the evidence that Wenger and Evans traded tractors, and that at the time that Evans traded his tractor to Wenger he inquired of Wenger whether or not his tractor was in good condition, and that Wenger told him it was in good working condition, all that it needed was some paint and piston rings tightened up, and that said representations of Wenger, if he made such representations, induced Evans to make the trade, and that Evans upon making the trade found upon testing out the Waterloo Boy tractor that it was not in good condition, that the crank case was out of order and it would leak and made it unfit to operate, and if the jury believe from the evidence that the representations made by Wenger to Evans was about a material thing and was false and induced Evans to enter into the contract of trade, then they shall find a verdict for Evans."
The court took the motion for a new trial under advisement until the next term of the court and at that term *Page 60 sustained the motion, and a new trial was had upon the same evidence, whereupon the court gave a peremptory instruction for the defendant, Wenger, and thereafter a trial on the claimant's issue between Wenger and his vendee resulted in a verdict for the claimant.
We think the court below erred in granting the motion for a new trial on the first trial. The plaintiff had won his verdict on the conflict in the evidence, and, as we view his evidence and the instruction above set out, there was no error warranting the setting aside of the first judgment. It was also error to grant the peremptory instruction on the last trial between Evans and Wenger.
The judgment of the court below will therefore be reversed, and the first judgment reinstated.
Reversed, and judgment reinstated.