#### William Swartz v. David Atchison.

1. Measure of damages—in action for breach of warranty. In an action for a breach of warranty, the measure of damages is the difference between the market value of the original warranty and the market value of the same in the condition it actually was at the time of the sale.

2. Verdict—when not disturbed. A verdict will not be set aside on appeal as contrary to the evidence where such evidence is conflicting and the verdict does not appear to have been the result of prejudice or passion.

Action commenced before justice of the peace. Appeal from the Circuit Court of DeWitt County; the Hon. Solon Philbrick, Judge, presiding.

Heard in this court at the November term, 1904.

Affirmed.

Opinion filed April 20, 1905.

John Fuller, for appellant.

Lemon & Lemon, for appellee.

Mr. Justice Puterbaugh

delivered the opinion of the court.

This action, which was brought by appellee against appellant to recover damages for an alleged breach of warranty of a horse sold to him by appellant, has been tried with varying results before a justice of the peace and twice by jury in the Circuit Court. The last trial resulted in a judgment for the plaintiff for $5, from which the defendant appeals. The evidence as to whether there was a warranty as alleged, is conflicting, appellee testifying that there was and appellant to the contrary.' There was no evidence tending to corroborate either, and the jury evidently' believed appellee and disbelieved appellant. We see no reason to disturb their finding. It is not controverted that the horse was unsound when purchased by appellee.

The breach of warranty having been established, plaintiff was entitled to recover ¿s damages the difference between the market value of the horse, had he been as warranted, and his market value in the condition he actually was at the time of the salo, Appellant admits in *120argument, that this difference is shown by the evidence to have been at least $85, and insists that the inadequacy of the verdict indicates that it was not based upon the evidence, but was the result of sympathy for the plaintiff. We find nothing in the record warranting such contention. While the verdict is much smaller than the evidence warranted, advantage of that fact can only be taken by appellee.

The judgment will be affirmed.

Affirmed.