delivered the opinion of the Court:
In this case the testimony is very conflicting, the witnesses for the plaintiff and for the defendant testifying directly opposite. In such a state of case we have looked to see where the probabilities lie, and we are satisfied they are on the side of the plaintiff; and this from two facts, about which there is no dispute, and must control the case. These facts are, first, selling the beer by the appellants after the alleged sale to them by appellee, and exercising control over it by drawing it out from the casks and mixing new beer with it to improve its condition; and, second, passing a resolution appointing Throne an agent, to proceed west to make sales of the beer.
The jury must have considered these as controlling circumstances in favor of the appellee, and we can not say they are not such circumstances as should have weighed heavily in favor of the finding.
As to the instructions, we think the court properly disposed of them, and perceiving no error in the record we must affirm the judgment.
Judgment affirmed.