
    Murray Appellant, v. Farthing Appellee.
    Si. contracted with F. for two hundred pork barrels, of the ordinary size and quality. M. afterwards received of F. that number of barrels, hut not of the size and quality contracted for, nor in discharge of the contract. Held, that M. was liable for the barrels received, according to their common selling price.
    Appeal from Monroe circuit court.
    
      Heard for Appellant.
    
    1st. The verdict was contrary to the evidence in the cause.
    2d. That the damages assessed by the jury were excessive.
    3d. That the verdict was against law.
    
      Howell for Appellee,
    
    Cites 2nd Cnitly’s pleadings, notes 75 and authorities cited' Starkl 275- 6 Taunt 322< 1 Marsh. 581. 4 Taunt 745. 2 Taunt. 150. Blk. Rept. 103. Starkie vol. 3, p. 1769. Pirtle dig. 222. 6 Monroe 612 to 615. Mar-f°r<l vs Martin &c. Pirtle 225 and 226. 2 Starkie Ev. 641. 2 J. J. Marshall, 593, 594, Dance vs. Boyd. 5th vol. M. D. 487, Mulliken vs. Greer, same Yaughn vs. Montgomery 529. 4 vol. M. D. 275. Oldham vs. Henderson and the adjudged cases in this court, M’Knight and Brady vs. Wells, 1 vol. M. D. 14.
    M. contrae-for two1 lu n-dred pork bar-dinary size & aftebrardsro coived of F. ' ofbarreSjtrat not ofthosize contracted y discharge1 of the contract, wasi’iablí for ding to their common selling pnce,
   "Opinion of the Court delivered by

McGirk Judge.

Farthing, the plaintiff in the court below, brought an action of assumpsit in the circut court of Monroe county to recover the value of two hundred pork bai’rels, before the bringing of the action, by him delivered to Farthing; plea non assumpsit; on this pleading the parties went to trial before a jury, and the jury found a verdict for the plaintiff for two hundred and seventy-five dollars and fifty cents; whereon, the defendant moved for a new trial, because the verdict was contrary to law and evidence, and the damages excessive; which motion was overruled; to reverse which the cause is brought to this court. It seems, by the bill of exceptions, that some time in 1838, the plaintiff and defendant made a bargain, that the plaintiff was to make at his shop for the defendant two hundred pork barrels of the ordinary s^ze and <luality; that the plaintiff did not make the barrels as he agreed to do, but that the plaintiff made two hundred °f a different quality and size from those agreed on. Before the defendant took them, he saw them, and was told by a witness what sort of barrels they were. lie, nevertheless to°k them an<^ Put P01’k hr the most of them, sold 60, and threw 13 away as useless. There was some proof that three barrels would not hold brine, but the defendant put pork in them, and sold it without loss. The fact that the barrels were not made according to the contract makes no sort 0f difference in this case, as the defendant appears 11 not to have received these barrels on that agreement, but he took them out of the 'agreement, and lie is bound now to pay for them according to their common selling price. The jury have deducted thirteen dollars from the 2 00 that makes the amount of the verdict at $1,50 per barrel, without any interest. It seems, therefore, to the court that the verdict, is about right.  