
    Baldridge v. Bryan.
    In an action for goods sold and delivered, the testimony showed goods sold to the amount of $130 only, and the receipt of'considerable sums of money by the defendant from the plaintiff; the verdict was for $230; held that a new trial should have-been granted, as there was no count in the declaration to which the evidence for money received was applicable.
    APPEAL from the Circuit, Court of Crawford county.
   M’Girk, C. J.,

delivered the opinion of the Court.

This was an action of assumpsit for goods sold and delivered, brought by Brya® against Baldridge. On the general issue the parties went to trial; verdict and judgment for the- plaintiff for $230. The appellant made two points in the case; the first is, that the verdict does not find the issue. The verdict is, that the jury find th e plaintiff has sustained damage, as alledged in his declaration, to the amount of $230. We will pass, this point for the present, inasmuch as we are of opinion that the Court erred in refusing a new trial.

The testimony on the part of Bryan shows goods sold to Baldridge to about the amount of one hundred and thirty dollars, it ■ also shows that Baldridge received money of Bryan to a considerable amount; but the witness does not know how much, but there is no count in the declaration on which this evidence could be applied. The jury must however have founded their verdict to the amount of $100. on this sort of testimony, a new trial ought to have been granted. The judgment is reversed, the cause is remanded to, the Circuit Court for a new trial.  