
    B. W. Payne et al. v Jas. C. Ditto's Ex’ors.
    Warranty — Conflict of Evidence — Peremptory Instructions — New Trial.
    Where there is an apparent conflict of testimony, on a question of warranty, the jury should he allowed to decide the measure of damages, and a peremptory instruction is improper.
    APPEAL PROM MEADE CIRCUIT COURT.
    January 21, 1868.
    
      Kincheloe & Lewis, for appellants.
    
    Walker, for appellees.
    
   Opinion op the Court by

Judge Robertson :

Whatever the jury might have been authorized to infer as to the character of the sale, or of the Jack, or of the cause of its frequent failures, or of the conduct of the appellants in not accounting for it, still there was some apparent conflict in the testimony on the question of warranty, which the jury ought to have been permitted to decide on the counter claim.

We are therefore of the opinion that, even though the evidence, all rightly considered, may have preponderated in favor of the verdict, yet the peremptory instruction to find it was erroneous. And for this cause the Circuit Court ought to have awarded a new trial.

Wherefore, the judgment is reversed, and the cause remanded for a new trial.  