The issue was simply whether the defendants, when receiving $100 from the plaintiff, had agreed to give him possession of the horses purchased, or whether that possession was to await his payment of the balance of the purchase price. There was a close and sharp conflict of testimony upon the question of the terms of the contract, and, if the plaintiff’s version was accepted, judgment was properly rendered in his favor. The justice, however, while finding for the plaintiff, indorsed a memorandum upon the summons to the effect that he did not believe the plaintiff’s story. We cannot reconcile, this statement with the judgment, and substantial justice requires that a new trial be had.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.