By the Oourt
Elandbau, J.The action is upon four promissory notes for $300 each — a balance due upon a purchase of a stock of goods. Tbe defence is, tbat the Plaintiff warranted tbe goods to be of tbe value of $4,000, and that they were not of tbat value, and also tbat tbe Plaintiff bad abstracted goods to tbe amount of $1,516.25 before delivery, &c. Tbe Defendant proved tbat after taking tbe goods lie made an inventory of them, and found tbat they were in value but $2,862.82, including tbe safe at $50, and some other articles tbat be did not get, wbicb would reduce tbe value still lower. A good deal of testimony was given to show that Plaintiff bad carried off portions of the goods, but with what success in establishing tbat point it is unnecessary to notice. After tbe testimony was closed the Court charged the jury, first, “ Tbat tbe measure of damages in favor of tbe Defendant was tbe difference between tbe $4,000 warranted by Dukes, and tbe amount of tbe invoice made by Smith.” This charge was erroneous in every particular. In tbe first place it assumes tbat there was a warranty, wbicb was for tbe jury to find. In tbe second place, it assumes tbat tbe invoice made by Smith was tbe real value of tbe goods, when tbe testimony was conflicting or at least unsettled upon tbe subject of value, *376several bases having been proved, either of which the jury might have adopted. The Court had no right to select from the other proof the invoice of Smith, and tell the jury to predicate their verdict upon that as the actual value of the goods. He should have told them that if they found a warranty of $4,000, then to find the actual value, and the differ-enees would be the damages. In his charge he assumes both the warranty and the actual value, and directs the jury to find the difference.
The Judge, in another part of his charge, told the jury {< that they were to pass upon the warranty, and also were to find if any goods had been removed by Dukes, and find the value against Dukes.”
This would operate as a qualification of the former charge, so far as it left the question of warranty or no warranty to the jury, but it did not clear up that part of the charge in which the jury had been told to take Smith’s invoice as the real value of the goods; and I think it was well calculated to mislead the jury by leaving the impression upon their minds that they should deduct both the difference between the $4,000 warranted and Smith’s invoice, and the amount of any goods removed by Dukes from the Plaintiff’s recovery, which would of course be improper, as if the jury found the warranty, then the actual value was to be arrived at from all the testimony, and could in no aspect of the case fall below the amount of Smith’s invoice, as he had actually received' that quantity by his own showing, except the safe, &c. That the jury did fall into some such error is clear from the verdict they rendered, by which they allowed the Defendant $1,971.28 damages, (not noticing interest on either side,) an amount considerably beyond either theory of the defence — that of a warranty, or that the Plaintiff abstracted goods.
The Defendant offers to remit the excess. It is impossible to determine what the jury acted upon, or how they made up their verdict, under the charge of the Judge, so as to correct the error, and arrive at the amount they should have given, and the amount to be remitted. Had they found specifically the warranty, the actual value of the goods received by Smith, and the amount of goods removed by Dukes, there would *377have been data from which to hare made up a proper verdict» but in the absence of these facts no remittitur can do justice between the parties.
The Plaintiff objects that where the defence is by way of recoupment, the Defendant can only recover enough to bar the claim of the Plaintiff, and cannot have a verdict for damages in his favor. This Court has held otherwise: In the case of Mason and Craig vs. Heyward, 3 Min. R., p. 189, we say—“The doctrine of recoupment, as treated of by jurists seems to be an innovation upon or departure from the strict rules of law, sanctioned by Courts for the purpose of doing equity between parties where it could not otherwise be attained, or not without a circuitous and expensive process. And this principle, which had crept in under the old system of pleading, has, as before remarked, been extended by the Code, so that a Defendant may now not only plead in reduction or bar of the Plaintiff’s claim, but may even be permitted to establish a claim and recover a judgment for damages against the Plaintiff. See Comp. Stat., p. 481, sec. 24.
The Court below has corrected its error by granting a new ■ trial of the case, and the order is affirmed.