This was an action of trover brought by the plaintiff against the defendant to recover two mules of the alleged value of $250.00, and their hire alleged to be of the yearly value of $50.00.
On the trial of the case the jury found a verdict in favor of the plaintiff for $347.25. The defendant made a motion for a new trial on various grounds, which was overruled,, and the defendant excepted.
It appears from the evidence in the record, that on the 1st of April, 1874, the defendant, Clark, in consideration of the sum of $125.00, executed to the plaintiff’s testator a bill of sale for the two mules, which were then in the possession of Clark, who was to retain the possession of them until the 1st of November thereafter, (the defendant to risk the lives of the mules) and then to deliver the same to the plaintiff’s testator, the defendant at the same time executed his note to the plaintiff’s testator for the sum of $125.00. *150The plaintiff demanded possession of the mules, which the defendant refused to deliver, but converted the same to his own use.
The defendant filed an equitable plea to the plaintiff’s action, in which he alleged that the bill of sale to the mules was a part of a contract entered into between himself and plaintiff’s testator in relation to a lot of land upon which the defendant was to settle, and improve, and there was a good deal of conflicting evidence in relation to that point in the case. The plaintiff and A. C. Bell testified to a conversation had with the defendant in relation to the matters alleged in defendant’s plea. The defendant was offered as a witness to prove all the conversation between the parties, which' was refused by the court on the ground that the plaintiff’s testator was dead.
1,2. The defendant was a competent witness to prove all the conversation had between himself and the living j>arties with whom it was had, notwithstanding the plaintiff’s testator was dead. The defendant was also a competent witness to prove the value of the improvements put on the land by him, and the court erred in ruling out the defendant’s evidence offered upon both these points, as made in the record.
3. The court charged the jury, amongst other things, that although the bill of sale may have been given to secure the payment of the note, and Clark failed to deliver the mules on the 1st of November, 1874, and they were demanded of him, and after that has converted the mules to his own use, then the plaintiff is entitled to recover the proven value of the mules, with interest to this date, as his damages, unless the defendant has satisfied you by the evidence that his defense is true.
If the bill of sale to the mules was given to the plaintiff’s testator by the defendant to secure the payment of the note, then the measure of the plaintiff’s damages was the amount of that note with the lawful interest due thereon, and not the proven value of the mules.
Whether there was a settlement between the plaintiff and *151the defendant in relation to the several matters in controversy, and by the terms thereof the defendant agreed to abandon the possession of the land in consideration that he was to be released from the rents and profits, we express no opinion as there is to be a new trial of the case.
Let the judgment of the court below be reversed.