¶1This was an action of assumpsit, brought upon a warranty given upon the sale of a horse, with a count for money had and received.
¶2Much and conflicting testimony was heard on the trial, which it is the peculiar province of a jury, in such cases, to reconcile ; and an instance can scarcely be found in the books where a verdict has been set aside under such circumstances, even if it may appear to the court that the verdict may be against the weight of evidence. Lowry v. Orr, 1 Gilm. R. 70.
¶3There is proof in the cause that Byerson returned the horse to Morgan so soon as he discovered the blemish, and the jury had a right to infer, from all the circumstances, that Morgan had accepted him.
¶4The measure of damages in such case is, the price paid for the horse. If he is not returned, the measure of damages is the difference between his real value and the price given. Caswell v. Coare, 1 Taunton R. 566.
¶5We see no objections to any of the instructions given by the court. The qualifications to the defendant’s instructions were all proper.
¶6The judgment is affirmed.
¶7Judgment affirmed.