#### George Westgate v. Reinhart Aschenbrenner.

Replevin—Alleged Sale—Evidence.

No error of law appearing, and the evidence supporting the verdict, the judgment for the defendant must be affirmed.

[Opinion filed December 22, 1890.]

Appeal from the Circuit Court of Lee County; the lion. John D. Ceabteee, Judge, presiding.

Messrs. Dixon & Bethea, for appellant.

Messrs. R. S. Farrand and J. E. Lewis, for appellee.

Per Curiam.

This was an action of replevin commenced by appellant against appellee to recover the possession of two cows, resulting in a verdict in favor of appellee.

The errors assigned and argued are that the verdict was against the weight of the evidence, and that the court gave an improper instruction for appellee. We will first consider the complaint that the verdict is manifestly against the weight of the evidence. It is true that appellant testified that he purchased the cows, and he was supported by one witness who testified to alleged admissions of appellee, but this evidence was met by as positive evidence on the other side that there *267was no sale. Under the evidence the jury were fully justified in their verdict. The instruction complained of was appellee’s third, which told the jury in substance that in order to constitute a valid sale and purchase of the cows, the minds of the parties must meet. This instruction was correct in principle and applicable to the evidence in the case, and it was therefore not error to give it.

The judgment of the court below will therefore be affirmed.

Judgment affirmed.

TJpon Rehearing.

[Opinion filed June 23, 1891.]

This case grew out of the controversy between the parties, involved in the preceding case, in which a rehearing has at this term been denied, and for the reasons given in the opinion therein a rehearing in this case is denied.

Petition for rehearing denied.