#### James Dunlap, Appellant, v. Eli Taylor, who sues for the use of Isham Taylor, Appellee.

APPEAL FROM MORGAN.

In an action of assumpsit to recover back money paid for land not conveyed, the finding of the jury, as to the value of the lots, will not be disturbed.

The facts of this case are stated in the opinion of the court.

The cause was heard before Woodson, Judge, and a jury, at October term, 1859, of the Morgan Circuit Court, which resulted ' *441in a verdict and judgment in favor of plaintiff below, for the sum of $415.84. Defendant below appealed.

M. McConnbl, and C. Epler, for Appellant.

J. L. and C. M. Morrison, for Appellee.

Breese, J.

This is an action of assumpsit; the declaration contains three counts. The third is for the value of certain lots of ground the plaintiff had paid for. It alleges, substantially, that the plaintiff paid the defendant Dunlap, four hundred dollars for the lots, on his promise to convey on request, and the breach is that he did not convey them on request.

The proof is clear, that the defendant said to several persons, that the plaintiff had paid him for the lots. This fact was admitted. This was sufficient to authorize the jury to find for the plaintiff on the third count. It is manifest the defendant paid for the horses and wagon, in hay delivered the plaintiff.

It is true, as argued, the defendant was entitled to have the note he held by indorsement from McClernand executed by the plaintiff, set off against the claim of the plaintiff. It was pleaded, and was a fair subject of set-off; but we cannot say the jury did not allow it. The evidence of the value of the lots, at the time they should have been conveyed to plaintiff, was conflicting, and by equalizing it, the balance found due the plaintiff, after deducting the amount of the note, might have been the precise amount found by the jury. We cannot say.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.