delivered the opinion of the Court:
There is no error in this record to justify a reversal of the judgment.
After a careful reading we can not say that the verdict is against the weight of the evidence.
The plaintiffs below proved that they purchased the hogs at seven cents per pound, and that they remarked that the price of hogs was on the decline, according to the report of the market in the Chicago Times. That paper, dated on the day before the purchase, was introduced, and from its market report it appeared that the prices of hogs were on the decline.
This evidence was not satisfactorily negatived on the part of the defendants. They admitted, upon their examination, that the plaintiffs only offered seven cents per pound; but insisted that they sold upon the condition that the prices were not on the decline.
It was also in proof that, though the prices had actually advanced, the party purchasing was not aware of the fact at the time of the bargain; that he relied upon the newspaper report, and communicated all the information within his knowledge.
The defendants were witnesses, and did not deny that the purchaser referred to the Chicago Times as his authority as to the value.
The important inquiry was as to the character of the bargain.
In the varying condition of the market it is most unreasonable to assume that a trader would buy upon the condition supposed. His purchases would, be wholly uncertain, and he would have no guide as to future contracts.
The jury have determined as to the truth of the respective statements, and we are not disposed to disturb their finding.
Error is assigned upon the second instruction given for appellees. It is as follows: “It is incumbent on the defendants, under the contract alleged in plaintiffs’ declaration, to show an offer to perform, or some excuse for non-performance on their part, in order to excuse themselves from liability to pay damages, if the evidence shows that plaintiffs were ready and willing to perform their part of the contract.”
This instruction is not liable to the objection that it assumes the existence of the contract, and in connection with other instructions it could not mislead the jury.
The instruction immediately preceding it in the series informed the jury that they must believe, from the evidence, that the parties contracted as set out in the declaration. It would then follow, as a matter of law, that the defendants must excuse their non-performance.
On behalf of appellants the court instructed the jury that appellees could not recover unless they had proved the contract, as alleged in their declaration, by a preponderance of evidence.
It is most improbable that the jury were confused by the instructions.
The judgment is affirmed.
Judgment affirmed.