majority">Philips, P. J.

I. The only errors assigned for the reversal of this judgment arise on the instructions. It is claimed that the instruction given on behalf of plaintiffs is wholly unsupported by the evidence. This assumption rests on the fact that the plaintiff, Oxford, in his testimony, said that neither he nor his co-plaintiffs ever delivered the ties, and that they were not delivered to defendant by their consent. Of course, if the ties were not delivered the plaintiffs could not recover under this petition. The place of delivery, it is agreed, was Jackson station. It is manifest from the whole record that Oxford in his statement was giving rather a legal conclusion of his mind and understanding, and was *395.referring to the ties delivered after the 5,953 ties. The-answer itself admitted the delivery of said 5,953 ties, and that they complied with the contract. That a large number of other ties were delivered at Jackson station there can be no just ground to question. It appears-that some time after the ties were ready, the defendant sent one Boyd to inspect them. The plaintiffs claimed that the ties delivered under the arrangement of February, 1882, were not subject to inspection, but were only required to come up to the sample shown when the defendant was in the, woods and agreed that this would do. So Oxford testified: “I refused to allow Boyd to-inspect the ties. I claimed that he should take all the ties we had at Jaclcson station. There was nothing said about inspection when defendant was in the woods and agreed to take smaller ties than those originally required.” The witness, Sneed, on behalf of plaintiffs-testified: “I saw the ties in question at Jackson station. I examined about six thousand of them. They were a light grade of ties.” (Then these must have been in excess of the high grade of ties.) “After the inspector called Parberry’s attention to the character of’ the ties on hand, plaintiffs continued to bring in a great many small ties.” The defendant testified that he got the 5,953 good ties, complying with the original contract, and then stated : “I suppose the remainder of the ties-are at Jackson station. They would not pass inspection and I would not take them.” Jones testified for defendant: “I know the ties in controversy — saw them after they were brought to the railroad station. They were small ties. There were 3,900 thrown out as culls ; 5,953 ties were taken by defendant, and 3,900 rejected, which were all the ties at Jackson station at the time.”

From which it is clear the ties were at the station and what was in the mind of the plaintiff, Oxford, when he said they had not been delivered, was that defendant had no right to subject them to inspection and taker them by culling them as he did; that he had not deliv*396«red for such purpose. The whole controversy at the trial was as to the making of the second contract, and the quality of the ties. There was no question made .as to whether plaintiffs had delivered them at the .station.

The verdict of the jury shows that they sought after justice between the parties, and made a compromise, giving the plaintiffs less than they asked and making the defendant do more than he was willing. With their •discretion, under the facts of this case, we will not interfere. Under the evidence of the witness, Jones, to say nothing of the probable loss and taking away of ties .after the plaintiffs had delivered them, long before .Jones saw them, there were 9,853 ties at Jackson station. At thirty-four cents a tie the defendant owed $3,349.02. He had paid $2352.51, leaving a balance of $996.51, provided the ties above the 5,953 came up to the standard • •of the sample shown defendant at the time the contract was changed. The jury "allowed the plaintiff only $516.95. The jury again were probably influenced by a desire to attain an equitable adjustment, and we see no reason to interfere with their discretion and conclusion.

II. The fourth instruction asked by the defendant .and refused by the court was properly rejected. It spoke of the character of the ties “required by the contract,” without indicating which contract. It ignored the contention, made by the plaintiffs, that the first contract had been changed, and that the ties in controversy had been furnished under the latter contract. It was, therefore, misleading.

The fifth instruction so refused was obnoxious to the same objection. The instructions, taken as a whole, fairly enough presented the real issues in the case. The •defendant was beaten on the facts, in the opinion of the jury; and we can discover no just reason for disturbing their finding.

The other judges concurring, the judgment of the ■circuit court is affirmed.

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