The defendant bought a mule from the plaintiff, but at that time gave no note for it. After keeping and Avorking the animal for two or three months he sent it back to the plaintiff, AAdth Avord that he did not want it. The plaintiff immediately returned the mule to him, and subsequently upon the same day saAv him, and, according to the testimony of the defendant, said to him: “I Avill knock off $25 if you will take her and get her in good shape; and if she don’t' suit you, bring her back and Ave Avill sell her and go fifty-fifty on the loss.” The defendant then agreed to keep the mule and signed a note for $300, — the note sued upon. The undisputed eAddence further sIioavs that after the defendant signed the note he kept and Avorked the mule for two years before he made any complaint to the plaintiff, and that he never returned the mule to the plaintiff or requested him to sell it in accordance with their alleged agreement. The jury returned a verdict in favor of the plaintiff for $225 as principal, *18and for interest and attorney’s fees provided for in the note; and the plaintiff made a motion for a new trial, which was overruled, and he excepted. Conceding (but not deciding) that the testimony of the defendant in regard to the alleged oral agreement, as quoted above, was admissible, the evidence demanded a verdict in favor of the plaintiff for the full amount sued for, and the court erred in overruling the motion for a new trial.
Judgment reversed.
Luke and Bloodworth, JJ., concur.