delivered the opinion of the court:
According to the principles established by. this court in the case of Heilman vs. Martin, the jurisdiction of the Circuit Court can only be questioned by a plea in abatement, where the facts as shown by the ' declaration, present a contract upon which the plaintiff may, if the same be admitted or proven, legally recover a sum exceeding one hundred dollars. In the present case, the damages are unliquidated, and the plaintiff upon the contract as set out in his declaration, might, if the proof justified it, legally recover upon the contract as set out in. each count in the declaration, more than that sum. The court therefore, prima facie, had jurisdiction of the cause, and the defendant could not controvert the same, otherwise than by plea in abatement showing affirmatively such facts as in law would divest it of its apparent right to adjudicate the case; w'hich he in fact attempted to do, but subsequently waived by pleading to the action in bar thereof, whereby he rested his case alone on the general issue, and like every other suitor is now bound by law to abide the consequences of his own acts. The only question therefore to be decided is does the proof shown by the record establish and sustain the contract as laid in the declaration ? The contract specially set out is that the defendant below on the 15th of November, 1837, agreed to sell to the plaintiff 26 head of pork hogs, to be delivered at the defendant’s dwelling house on the 26th day of December following, for which he was to be paid at the rate of four dollars per hundred.
Does the proof support this allegation? The first witness says that the defendant told him he had sold his pork to the plaintiff at ‡4 per hundred if they agreed. The second witness said that the defendant below informed him he had sold his hogs to a stranger then in company at four dollars per hundred, but he did not know the stranger’s name, and that he heard him also say to his sister-in-law that he did not know whether the plaintiff would get his hogs or not, and that if plaintiff refused to take all, he should not have any of them. The third witness stated he was employed by the plaintiff to collect the hogs he had purchased, and he heard the plaintiff tell defendant that he had come for the hogs. To which the defendant replied that he would let him have all they could agree upon in regard to their weight. They disagreed as to their weight; the plaintiff alleging that he was to have 24 or 25 head according to the contract.. The defendant insisted that he was to take all of them that were fat.
'This is the substance of all the proof. For the bill of exceptions states that it was all the evidence given upon the trial. The testimony certainly does not prove the contract as laid. The proof, if it establishes any contract at all, which is exceedingly questionable, only establishes a conditional agreement which is every way indefinite as to its terms, and as to the number of hogs to be delivered. The allegation of the declaration is that it was a positive sale of 26 head of hogs depending upon no contingency whatever, which were to be delivered in six weeks from the 15th of November, 1837, at the defendant’s house, at four dollars per hundred, and the defendant’s failure to comply with this contract constitutes the plaintiff’s cause of action. The proof certainly wholly fails to support the allegations of the declaration, and of course the jury were not warranted in finding for the plaintiff', consequently the court below erred in rendering judgment upon the verdict, and in not granting a new trial to the defendant. This being the case,'the judgment of the court below must he reversed.