
    William C. Fain, plaintiff in error, vs. Robert H. Jones, and Robert H. Williams, partners, defendants in error.
    When the verdict is contrary to the evidence, a new trial will be granted.
    Complaint, in Fannin Superior Court. Tried before Judge Rice, at--Term, 1858.
    The facts are stated in the opinion of the Court.
    Frances, for plaintiff in error.
    Walker, contra.
    
   By the Court.

Benning J.

delivering the opinion.

Jones & Williams sued Wm. C. Fain, for $140, for a buggy sold and delivered to him.

He pleaded mn assumpsit, and a partiaFfailure of consideration in this; that, when he bbught the buggy from Jones & Williams, they warranted the buggy to be of good material, and built in a good and workmanlike manner; and that, in fact, the buggy was not of good material, or built in a good and workmanlike manner; but, that one of the hubs and coupling (a word I cannot make out,) gave way, before the buggy was run two days, and before Fain had reached home with it; to his expense, $50.

Philip B. Claiborne, one of the witnesses for Jones & Williams, testified, that he, as their agent, sold Fain the buggy for $140, and told him that Jones & Williams warranted its material and construction, for twelve months, with ordinary care, and that if said buggy gave way within twelve months, he, as agent for them, would pay for the repairs; that he saw the buggy, at their house, in' August, 1856, directly after the same was purchased; that one of the fore wheels was “bursted” in the hub, and banded, and temporarily wedged up; that he saw a part of the wood that came out of the “ bursted” hub, and that he thought it was bursted, in consequence of the hub being made out of a piece of timber that was partly rotten; that he looked upon the buggy to be nearly a three wheeled buggy, and that he thought it would take between ten and twenty dollars to repair the same; and thought that Jones & Williams would charge that amount, to repair the same.

It was proved by another witness, Ebenezer Fain, that he employed a workman, to fix one of the fore wheels of the buggy, the box of which wheel, had become fast on the axle, 'and was turning in the wood, as the hub; and he had some screws fixed ; and, after said repairs, took the buggy to W. C. Fain; that the work done on the buggy, cost #1 75.

The jury found a verdict for Jones & Williams, for #138 50, besides interest.

A motion was made for a new trial, on the assumed grounds, that the verdict was contrary to law; contrary to the evidence and to the weight of the evideuce; and that the Court erred in charging the jury: that, if the contract was, that the plaintiff warranted the material and construction of the buggy for twelve months, and, that, if the buggy failed from defect of material or construction within the twelve months, the defendants should have it repaired, and plaintiff would pay the expense of the repairing ; then, it was incumbent on the defendant, to prove, that the buggy failed within the twelve months, and the particulars wherein it failed,and what the expense of repairing the buggy was ; and defendant would, then, be entitled, to have the expenses deducted from the price of the buggy.

The Court overruled the motion, and that was excepted to.

Claiborne’s testimony shows, that the hub was rotten. His testimony stands.uncontradicted. And his opinion was, that the defect was one^vhich depreciated the value of the buggy, by from $10, to #20.

The jury allowed only $1 50. They, doubtless, going upon the testimony of Ebenezer Fain, who said, that the work which he caused to be done on the buggy, cost $1 75. But that work may have been but the temporary repairing to which, Claiborne himself referred as done when he saw the bursted” wheel, and formed his estimate of the extent of the injury. Manifestly, $1 50 is not sufficient to replace a rotten hub.

We think, then, that the jury ought to have deducted, at least $15 from the price; and, that, as they only deducted 01 50, there must be a new trial, unless .Tones & Williams will remit f 13 50, from the verdict.

Judgment accordingly.  