The following opinion on rehearing was filed December 16, 1903. Judgment of affirmance adhered to. Remittitur ordered:
Per Curiam:A resubmission and reconsideration of this cause upon oral arguments on the motion for a rehearing is productive of no different result or change of views from those heretofore expressed (Meyer v. Michaels, ante, p. 138), except with relation to the question of the alleged excessive verdict returned by the jury. Further examinatiou of the record and consideration of this question convinces the court that the verdict is excessive and can not be upheld under the evidence as preserved by bill of exceptions. The value of the stock originally purchased, including fixtures, may fairly be said to be worth the sum paid; to wit, $5,482. New stock was purchased during the continuation of the business approximately of the value of $10,000, total $15,482. From this total stock, goods were sold in the ordinary course of trade for which were received, approximately, $15,000. In these receipts was included a profit of 30 per cent, thus making the cost of the goods sold amount to $11,538.46. Taking the value of the goods thus *152sold from tbe value of the total stock as above found and the result is the value of the stock including fixtures at the time replevied, which equals $3,948.54. From this sum should be deducted the sum of $557.20, the value of the constable’s interest and the remainder $3,386.34, with interest at the rate of 7 per cent, from the date of the replevin proceedings, represents the highest amount of recovery which the defendant is entitled to. The judgment of affirmance is vacated, as to defendant Michaels, and the judgment rendered in the court below in favor of defendant Michaels is reversed and the cause remanded, unless the said defendant Michaels shall, within twenty days from the rendition of this judgment, file a remittitur of the judgment recovered, of all thereof in excess of the said sum of $3,386.34 and also remit a proportional amount of the total sum assessed as damages for the unlawful taking and detention of the property replevied by the plaintiff. In the event the remittitur is filed within the time stated, the judgment of affirmance is adhered to.
Affirmed.