By the Court.
Jenkins, J.,'delivering the opinion.
The exceptions presented by this record impute error both to the finding of the jury and to the charge of the Court.
It is urged that the verdict rendered is contrary to evidence and contrary to law.
Whether or not it is contrary to law must depend upon *667the facts of the case, and unfortunately the proofs submitted leave a very important question of fact in great doubt.
It appears that the plaintiff in error had a horse stolen from him, and subsequently commenced an action of trover against the defendant for the horse.
The defendant unquestionably had in his possession a horse very much resembling that stolen from the plaintiff. All experience proves that cases of this sort often present very nice questions of identification, and upon such questions this Court would be very reluctant to disturb the conclusions of a jury. Each party relies upon declarations of the plaintiff made before the purchase of the horse in dispute, by the defendant. It appears that this horse had been four times sold after the disappearance of plaintiff’s horse, the buyer in each instance being a- purchaser without notice, except in the last; and here the sayings of the plaintiff became important.
The defendant proved, by two witnesses, that when the horse was in the possession of McLendon, from whom he purchased, the latter having heard that this horse had been stolen from the plaintiff, sent to request that he would come and examine the horse, and decide whether or not it was his; that plaintiff went, carefully inspected the horse, and positively disclaimed him, designating points of difference between the two, and adding that McLendon might dispose of him whenever he pleased.
Plaintiff, on the other hand, proved by one witness that previous to the defendant’s purchase, plaintiff had warned him not to buy the horse, for that if the horse was his, he was resolved to have him at any cost; and by another, he proved the same warning, adding that the horse was his, and that he would have him at any cost. It also appears that this warning would have deterred the defendant from buying the horse, but for the repetition to him, by McLendon, of plaintiff’s disclaimer, and consent that McLendon might sell the horse.
But it does not appear from the testimony whether the disclaimer to McLendon, or the warning to defendant, was posterior in the order of time, and had there been nothing *668in the charge of the Court, to mislead the jury, we would presume that they found the warning to defendant not to buy the horse, to have been prior to his inspection and disclaimer of the horse, and under that state of facts would have sustained their verdict. But it is also objected that the Court charged the jury in effect that the disclaimer of the plaintiff, if communicated to the defendant, estopped the former, even though the warning by him to the latter was subsequently given. Was this correct? May he not have changed his opinion as to the identity of the horse from further inspection, or from other evidence? In that event, was he necessarily estopped by his disclaimer ?
1. We think that so long as nobody was injured by his disclaimer, there remained to him a locus penitential. He might, whilst the horse continued in McLendon’s possession, have retracted it even as to him.
If the warning was given by him, to defendant, after this disclaimer, and the defendant knew it to be so, then the retraxit, as to him, was sufficient, and he acted in his own wrong.
2. If, on the other hand, the disclaimer to McLendon after the inspection, was subsequent to the warning given the defendant, the latter was, upon being so informed, justified in disregarding the warning. The jury should have been so charged. But they must have inferred, from the charge of the Court, that it was immaterial, which was made last in point of time, that the disclaimer was binding upon the plaintiff, under all circumstances, and may thus have been misled. Had the law been correctly given in charge to the jury, we would not have disturbed their verdict, but inasmuch as the charge of the Court may have controlled the case, we think there should be a re-hearing.
Let the judgment be reversed.