delivered the opinion of the Court:
This was an action upon a note for $500 given, together with eighty acres of land, in payment for a quantity of goods purchased by appellant of appellee.
It. .is deemed unnecessary to consider any other error assigned upon this record, than the one involved in respect to the issue formed under the second amended plea.
The plea sets up, in substance, the contract for the sale and purchase of the goods, the giving of the note and $1,000 for them; that defendant was ignorant of their quality; that, by the express terms of the contract of sale and purchase, the goods were to be good, merchantable stock; that they were old, shop-worn and unsalable; that, by the contract, they were to be put in to defendant at the fair ruling wholesale prices of such description of goods in Chicago; that defendant was ignorant of such prices and plaintiff' knew it; that said goods were fraudulently put down to defendant and were by him purchased at greatly more than the fair, wholesale prices of good, marketable goods of that description, whereby the defendant had sustained §1,000 damages, out of which he offered to set-off sufficient to satisfy the note. Replication — “ And the plaintiff, by way of replication to the amended plea of the defendant, by him secondly above pleaded, says, preclude non, because he says that the defendant has not sustained damage by reason of any acts or doings or representations of the plaintiff, in manner and form as is in said plea alleged. And this he prays may be inquired of by the country,” etc. Issue joined thereon.
The replication admitted the contract set up in the plea and the breach thereof, in accordance with the rule, that every pleading is taken to confess such traversable matter of fact, alleged on the other side, as it does not traverse.
The only issue then, under this plea, was upon the damages. The proof was very clear that the goods were unmerchantable to a great degree, and of largely less value than they would have been, had they been of the quality as contracted for. The jury found for the plaintiff the fall amount of the note, allowing no damages.
The verdict was manifestly against the evidence in this respect, and a new trial should have been granted. Judgment reversed and cause remanded.
Judgment reversed.