The main error complained of is that, after the jury had been charged with the case and had retired to consider the same, the court had them brought into court and said to them that he understood that they were not likely to agree upon a verdict, and inquired as to the trouble, and whether the same was matter of law or fact. A juror, as spokesman for the jury, answered, “It is upon, the question of amount.” The court then said: “ I cannot aid you in that, as I know .of, in any way, further than to say that, upon that matter, the jury ought to make a very earnest effort to agree upon the amount. Of course, a juror ought not to give up his convictions, if they are so strong, but there ought to be an effort to come to an agreement. You can retire and see if you cannot agree upon the amount.”
The case is closely contested upon the facts, whidi were sufficient to have authorized the jury to have found a verdict for either party. There had been no verdict rendered by the jury or made by them, and when the court sent for them and ascertained the cause of their disagreement (which it was his right to do), and that the same was as to matters of fact, he should have sent them back without any instructions. Such matters were alone for the consideration of the jury. It is possible that the jury may have understood the court as favoring the finding in favor of the defendant in error, inasmuch as he urged them to make a very earnest effort to agree upon the amount, and this might have led to the verdict Tendered in this case. And while we think that the court acted alone from a desire to prevent a mistrial, which was a laudable and proper motive, yet, taking the facts into consideration, the jury may have been misled by the instructions of the court, which might have induced some of them to give up their opinions *79and judgment in favor of plaintiff in error. We think that, under these circumstances, anew trial should be had.
Judgment reversed.
Jackson, Chief Justice, concurred. Hall, Justice, concurred dubitante.