delivered the opinion of the Court:
The proof settles this fact, that plaintiff, Wells, was to keep the horse if he would not answer his purpose, and defendants would allow him $100 in the trade. It was proved by the blacksmith who shod the horse just before the trade, that when defendants got the horse he was not stiff, but was stiff when he shod him, and the proof is full that he was not fit for livery purposes, for which plaintiff desired him.
The jury have given credit to the testimony of indifferent witnesses, that the whiskey was inferior—not worth $3.10 a gallon, or anything like it. It was returned to the defendants as not up to the sample, and they had it when the suit was commenced. There were 22 gallons of it, which at $3.10 per gallon, would amount to $68.20.
The verdict, then, should have been, premium for retaining the horse, $100 ; whiskey not delivered, 22 gallons, at $3.10 per gallon, $68.20; making in all $168.20. The plaintiff recovered $196.75, being more, by $28.55, than the evidence showed him entitled to.
A new trial should have been allowed. "We cannot correct the error here, and must reverse the judgment and remand the cause, that a new venire may issue.
Judgment reversed.