¶1 ON MOTION FOR REHEARING.
¶2 The judgment in this case was reversed because of the refusal of the court to give a special charge instructing the jury as to the consequences of a waste of the property levied on under the distress warrant, by the sheriff or others under his or the plaintiff’s authority. The motion for rehearing has pointed out the fact, not before mentioned by either party, that the answer of the defendant presents no such defense. Under the rule laid down, the burden was on the defendants to allege and prove the waste or mismanagement of the property; and as they failed to do so, it would be proper to grant the rehearing and affirm the judgment, were there no other errors requiring a reversal.
¶3 Some of the points raised by the brief of the appellants were not passed upon in the former opinion, as the errors complained of would not likely occur on another trial. But it now becomes necessary to decide them, in order to determine what disposition this court will make of the case.
¶4 The admission of paroi evidence of the contract between Felder and Morgan, which was shown to be in writing, was erroneous. The instrument itself was the proper evidence of what the agreement was. The court had excluded that when offered by the plaintiff, because it was not set out in the petition, and appellees contend that this ruling was error, and that as the paroi evidence showed no more than did the written contract, which appears in the record, the judgment should not be reversed because of the admission of such paroi evidence. It is unnecessary to examine the merits of this contention, as the charge of the court seems to have rendered harmless the ruling here complained of by appellant. The only purpose of such evidence was to show an agreement between Felder and Morgan, that the former should have a lien upon the crops raised by subtenants to whom Morgan might rent the premises, and to thus charge *426 "with á lien the property received by the Taylors from such subtenants. The court required the jury, in finding the value of the property received by the Taylors, to exclude such as had been received by them from subtenants, and it thus appears that the ruling upon the evidence could not have prejudiced them. It will be safer for plaintiff, if he seeks to reach cotton delivered to defendants Taylors by subtenants, to set out in his pleadings the facts upon which such lien must depend. ■
¶5 The contention of appellants, that the verdict was erroneous as to amount, and that the remittitur did not cure the error, is, in our opinion, well taken.
¶6 The court submitted only two special issues to the jury; the first as to the value of the cotton received by the Taylors from Morgan, and the sec- and as to the net proceeds of the property seized under the distress warrant. The purpose of this was, we assume, to enable the court to get at the amount remaining due on plaintiff’s debt, by deducting from the sum originally owing by Morgan the amount realized from the property levied on, and to adjudge such sum against the Taylors, if they were found to have received enough cotton to make them liable for it. No finding by the jury of the debt still due from Morgan to Felder was required by the charge.
¶7 The jury found the value of the cotton received by the Taylors to have been $690, and the proceeds of the property levied on to have been $276.23. They added a general finding for plaintiff for $276.23. This general finding the court ignored, and entered judgment for plaintiff for $296.73, which was arrived at, probably, by deducting the $276.23 found by the jury from the amount calculated to be due on the debt from Morgan. That was not the true amount received for property levied on, for plaintiff admitted in his pleadings that it amounted to $290.16, and the evidence showed an additional item of $20.50, making the total realized from the property seized $310.66. When this was pointed out in the motion for new trial, the plaintiff remitted $20.50. But according to the theory by which this judgment was arrived at, this was not enough. There should have been an additional deduction of $13 93, or the difference between $276.23 and $290.16.
¶8 This court, from the data in the record, could doubtless make up a correct judgment. To make it proper for us to do this, however, the basis should be furnished by the findings of the jury. When the jury passes upon the issues and makes findings sufficient to base a, judgment upon, errors they may have committed in finding too large an amount may be cured by a remittitur, if the record enables the court to see with certainty what sum should be deducted. But we can not render a judgment here without finding facts which the jury ought to have found, but did not find. There was evidently a misconception by them of the issue *427 submitted, and by “net proceeds” they meant to find the balance due the plaintiff. But no issue as to the debt due to plaintiff was submitted to them, and the court rejected the general findings for plaintiff, and attempted to enter a judgment upon the special findings. This judgment is found to be too large, and in reversing it we can not, without trying the case where the parties have chosen to try it by a jury, render a judgment. There should have been either a general finding of the amount due the plaintiff, or special findings of the facts from which that amount could be arrived at by the calculation. Then any mistake the jury may have made in finding an excessive amount could be cured by a remittitur. The plaintiff’s debt was not due entirely upon a written contract, and the defendants had the right to a finding by the jury fixing the amount of it. Without substituting ourselves for a jury, we can not supply the facts which should have been ascertained by the verdict; and as the judgment rendered, when tested by the verdict and the evidence, is erroneous, our former judgment reversing the cause must stand.
¶9 The motion is overruled.
¶10 Motion overruled.