The opinion
Wheeler, J.
■ The evidence, introduced by the plaintifi", might have warranted the jury in finding, upon his account, items proved amounting to $596 50. That is the utmost which there was any evidence conducing to establish. Four hundred dollars were credited on the amount of the plaintiff’s account. The case, then, stood thus: Of the plaintiff’s account 596 50-100 dollars were proved by his witnesses, and a credit thereon of $400, by his admissions. That is the plaintiff’s account was established to the amount of five hundred and ninety-six 50-100 dollars, and the defendant’s payment to the amount of $400. This left just 196 50-100 dollars, the balance due the plaintiff. There was no evidence to warrant the finding of a larger amount. Yet the jury returned a verdict for the plaintiff for 319 10-100 dollars, the balance claimed by him. The verdict, therefore, was clearly without evidence, and demonstratively excessive, for the sum by which it exceeded 196 50-100 dollars. To have warranted the finding, the whole amount of the plaintiff’s account must have been proved, which, as we have seen was not the case. The verdict, therefore, was not warranted by the evidence; and there was error in refusing a new trial. The judgment is reversed and the cause remanded.
Reversed and remanded.