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Opinion of the Court, the

Hon. George W. Pleasants, Judge.

About the 20tli of August, 1890, Charles L. Sprague agreed with appellee to let him have the use of a pair of mules for a year, in consideration of his undertaking to break them. At that time appellee proposed to take them, but Sprague thought they wouldn’t lead well behind his buggy and suggested that he come back for them on the following Saturday, which was done. Shortly afterward Sprague died, and appellant, C. P. Sprague, his son, was his executor, •who, as such, advertised the sale of personal property belonging to the estate to be made on May 22, 1891. On the morning of that day he caused the mules to be taken by his co-appellant from appellee’s place, against his will and protest, to the place of sale, where they were by him sold and delivered to a Mr. Armstrong. Three days afterward this action was brought before a justice of the peace, and, on appeal, tried by the court below without a jury. Judgment "was entered for plaintiff on the finding for §80 damages. The agreement, whatever it was, between appellee and the deceased, was verbal; appellee was allowed to state what the deceased said as constituting the agreement. Appellants insist that this was incompetent, because, though the action is against them personally and for alleged tort, Sprague defends on the ground of his authority and right as executor, and his co-defendant as his servant. We deem it unnecessary to decide this question, since Frances Sprague and Mary Coons, a daughter of deceased, testified that he told them respectively, just after appellee had been there, that he was to have them for a year—which was all that appellee stated, and there was no contradiction on that point.

Again, it is said that, as it appears appellee did not get possession of the mules for several days after the agreement was made, and it was not to be performed within one year, it was therefore void under the statute of frauds. But as the court held with appellants on the law, he must have found against them upon the question of fact. There was no evidence tending to show that, by the terms of the agreement, the year was to commence at a future day, but rather that it commenced presently; for appellee intended and proposed to take them immediately, and his right to do so under the agreement was not denied.

Defendants recalled one of their own witnesses and asked if he 'heard the plaintiff, on the trial before the justice, state the agreement with deceased, and having received an affirmative answer, further asked him to “ tell it as he told it there,” to which an objection for immateriality was sustained. Counsel did not suggest that the answer would tend to show a statement at all different from the one he made on this trial, nor what it would be or show. His statement on this trial had been corroborated by two Witnesses. If that made on a former trial was substantially the same—and there is no proof or presumption that it was not—its exclusion could do the defendants no harm.

Plaintiff was allowed, over .objection, to introduce evidence to show how much the use of the mules from May 22d to August 30th, would be reasonably worth. It was and is insisted that he should have been confined to the value of their use until May 25th, the commencement of the suit. We think not. When the suit was commenced he had been deprived by the act of appellants of their use for the entire residue of the term.

This value was variously stated by the witnesses—being from seventy-five cents to $2.50 per day, and would have warranted the finding of a larger amount than was allowed, without including the halters, for which plaintiff was allowed to state, over objection, that he paid $3.

On the whole, we think the conduct of the appellants was rather high-handed, and no injustice has been done by the judgment. The errors assigned, about which we might have doubts, we consider immaterial, and the defense without merit. Judgment affirmed.

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