#### The Warsaw Milling Company v. John M. Berry.

Sales—Wheat—Refusal to Accept—Damages.

In an action brought to recover damages sustained in consequence of a refusal by the purchaser to receive a carload of wheat, this court declines to interfere with a verdict for the plaint,ill.

[Opinion filed January 21, 1889.]

Appeal from the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.

Messrs. O’Harra & Scofield, for appellant.

Messrs. Sharp & Berry Bros., for appellee.

Per Curiam.

This was a suit originally commenced before a justice of the peace, and, upon appeal to the Circuit Court, appellee recovered a judgment for $76.29.

*107It was brought to recover damages sustained by appellee in consequence of appellant’s refusal to receive a car load of wheat sold to it by appellee.

The whole controversy turns upon the question whether or not the car of wheat was of the character bought.

It is insisted by appellant that when the car reached Warsaw it was damp and musty, while on the part of the appellee it is contended that the wheat was of the character required by the contract when it was shipped at Carthage.

We have carefully examined the testimony in the record and find no good reason for interfering with the conclusion reached by the jury. A question of fact like the one in dispute in this record is one that a fair-minded jury, who have the opportunity of hearing the witnesses and observing their manner of testifying, would be more likely to solve correctly than we could from an inspection of the evidence as it appears in the record.

There is no evidence of prejudice or passion on the part of the jury, and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.