¶1The plaintiff contends that he was entitled to recover 100 dollars, deducting the price for which the *194horse was sold and which was received by him, on the ground that the sum of 100 dollars, named in the defendant’s receipt, was liquidated damages for the non-performance of the contract. But we all think it could not be so considered, unless the defendant wilfully refused to return the property. In that event he would be estopped to say that it was of less value than that stated in the writing ; and having the power to return it, or having voluntarily deprived himself of the power, the presumption of law would be, that it had been at least of the value stated in the contract.
¶2But the property has been returned. It was not accepted in full satisfaction, on account of some alleged injury; but subject to a claim for indemnity for that injury, it has been re-delivered in part-performance at least of the contract. No action could be maintained upon an allegation, simply, that the horse had not been returned on demand. The fact was otherwise. The plaintiff, then, having the possession of the property, his only claim was for any damage or injury it had received from the defendant. It was for the plaintiff to show the injury ; and it was a question of damages on that part of the receipt, by which the defendant was to keep the property safely and indemnify the plaintiff. If the horse had been returned in as good condition as when received by the defendant, and had been sold on the execution for less than the value stated in the receipt, it is admitted by the plaintiff that the defendant would not have been liable to pay the difference. But if the defendant is assessed in damages so much as would be a sufficient compensation for the injury sustained through the defendant’s want of care, then in effect the contract is performed just as if the injury had not happened. The judge, we think, decided correctly, that the value stated in the receipt was not conclusive, but prima facie evidence, for the consideration of the jury ; and parol evidence, under the circumstances, of the value of the horse at the time when it was delivered to the defendant, was properly admitted, to ascertain the damages for the injury for which this action was trought.
¶3We are all of opinion that the judgment of the Court of Common Pleas should be affirmed.