
    William H. Wentz et al. v. Louis Wilson et al.
    
    New trial—verdict against the evidence. The judgment of the court below is reversed in this case on the ground that the evidence fails to sustain the verdict.
    Appeal from the Circuit Court of Warren county ; the Hon. Arthur A. Smith, Judge, presiding.
    The opinion states the case.
    Messrs. Stewart & Phelps, for the appellants.
    Mr. J. W. Davidson and Mr. John Porter, for the appellees.
   Mr. Chief Justice Breese

delivered the opinion of the Court:

This is an appeal from the Warren circuit court. The suit was assumpsit, on a promissory note, and the pleas were, a total failure of consideration, a set-off, and partial failure of consid-' eration.

The jury found for the defendants. The note, it appears, was given for a threshing machine, described as a number 2 machine, by the agent of plaintiffs, who sold it.

It further appears, defendant, Lewis Wilson, had, at first, ordered a number 1 machine, on which there was a warranty by plaintiffs. He afterwards changed his mind, and ordered a cheaper kind, a number 2 machine, and' now seeks to apply the warranty given on number 1, to number 2. His complaint is, that the machine does not clean the grain well; that a large per centage is left in the straw.

We are not satisfied the evidence justifies this, nor are we satisfied, if the warranty did attach to this machine, that it has been broken. The weight of evidence, we are inclined to think, is decidedly in favor of the machine. The purchaser has it in his possession, never having offered to return it, and has operated it repeatedly with success. He never complained of any defect until the note became due, but, on the contrary, said it was one of the best machines he ever saw.

There is no question of law mooted, and we dispose of the case by reversing the judgment on the ground the evidence does not sustain the verdict, and a new trial should be had.

The judgment is reversed.

Judgment reversed.  