Plaintiff sues upon four notes secured by mortgage and given for the price of certain lands sold by him to the defendant. The defense is that plaintiff failed to put defendant in possession of a material portion of said land, and that without that part the purchase would *618not have been made, and the prayer is that the sale be canceled, or the price reduced in proportion, which is fixed in the answer at one half of the whole price.
The facts are that, in 1870, Mrs. Cade rented a tract of land of ninety-seven 35-100 acres to the defendant for ten years, describing it as a part of a tract entered by Robert Cade on the fourteenth of January, 1857. Subsequently, the plaintiff purchased from his mother, Mrs. Cade, all the land entered by Robert Cade, and leased the whole of it for six years to .the defendant, giving a description of each part, including the portion said in the answer not to have been delivered. About a year thereafter, a sale of the same land, containing 643 9-100 acres, with the same description and the usual clauses as to warranty, was made by the lessor, C. T. Cade, to the lessee, E. C. Malain, the latter giving his four promissory notes, duo respectively in about one, two, three, and four years. "When the first note became duo, defendant refused to pay on the ground set up in his answer. Judgment -was rendered on a verdict of a jury for the amount claimed, less the value of the land of which defendant failed to get possession, and he appealed. Plaintiff asks an amendment for the whole amount claimed.
We think the verdict and judgment were correct. The defendant made an alternative prayer, and the jury found that the price should be reduced, and wo think the amount fixed' by them just and shown by legal evidence. It is unnecessary to pass on the alleged errors in the charge to the jury. Defendant had a right to prove by parol the non-delivery.
Judgment affirmed.
Rehearing refused.