On Petition for Rehearing.
Per Curiam.A rehearing is asked upon the ground that this court was not justified in concluding that the jury gave their verdict for the whole, and not for a moiety, of the hay seized by the sheriff.
The verdict was for $735. The complaint was for 160 tons of hay of the value of $1,200. Plaintiff was present when the hay was seized; he testified that he and the deputy sheriff making the levy “ concluded that there was something in the neighborhood of 130 tons,” and such was the quantit}' stated in that officer’s certificate of levy. The length, breadth, and height of the several ricks of hay as described in the certificate indicate the same quantity. Plaintiff further testified that the hay was worth from $7 to $8 per ton. Other witnesses, particularly defendant’s witnesses, testified that the quantity of hay and the value per ton were considerable less than the amount and value thus testified to by plaintiff. No *433witness making any definite statement as to quantity or value, placed the same above the figures claimed by plaintiff.
At the trial, counsel, on introducing evidence for defendant, stated that plaintiff’s witnesses had sworn to 130 tons as the amount of hay taken. In the motion for a new trial below, as well as in the assignments of error in this court, it is claimed that the verdict of the jury is excessive, — a position quite inconsistent with that assumed upon this petition for rehearing.
If the jury had found for the largest amount of hay taken as shown by any fair consideration of the evidence, 130 tons, and at the highest value shown by the evidence, $8 per ton, their verdict, if for the whole, could onty have been $1,040, and if for a moiety, only $520. It is clear, therefore, that the verdict in favor of plaintiff for $735 was not based upon his being entitled to recover for a moiety only. A verdict for that sum based upon one half of the hay taken would be contrary to any reasonable view of the evidence. A fair consideration of the evidence, however, would warrant the verdict for $735, upon the basis that the whole amount of hay taken was 105 tons of the value of $7 per ton.
The petition for a rehearing must be denied.
Rehearing denied.