#### James C. Hartley, Appellant, v. B. H. Blauvelt, Appellee.

Gen. No. 6,419.

(Not to be reported in full.)

Abstract of the Decision.

1. Trial, § 195 * —when verdict should not he directed. If there is evidencé from which if it stood alone the jury could without acting unreasonably in the eye of the law find that all the material averments of the declaration or some count thereof have been proven, the cause' should he submitted to the jury, instead of directing a verdict.

Appeal from the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917.

Reversed and remanded.

Opinion filed October 16, 1917.

Statement of the Case.

Action of replevin by James C. Hartley, plaintiff, against B. H. Blauvelt, defendant, for four mules. From a judgment for defendant, on a directed verdict, plaintiff appeals.

James H. Rennick, for appellant.

F. B. Brian, for appellee.

*

See minéis Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.

*5512. Trial, § 200*—when direction of verdict in action of replevin is improper. Plaintiffs evidence that he and a certain party had agreed that upon such party paying plaintiff a certain amount and settling certain bills against plaintiff the latter would turn over to such party four mules, that thereafter such party said he had forgotten one item and that he would only pay plaintiff a certain lesser amount, in which change plaintiff refused to acquiesce; that such party .paid, nothing to plaintiff, but took the mules from the agister upon paying the latter’s fees, and removed them to defendant’s farm and later sold two of them, and that plaintiff brought an action of replevin after demand, held to make out a case for plaintiff, if true, and the direction of a verdict for defendant upon the latter’s evidence of a different agreement was erroneous, even though the court thought the defendant had the preponderance of the evidence.