#### Christopher W. Knott v. Lot H. Skinner.

New trial—verdict against the evidence. In this case the judgment of the court below is reversed because the verdict of the jury is not sustained by the evidence.

Appeal from the Circuit Court of Montgomery county; the Hon. H. M. Vandeveer, Judge, presiding.

This was an action of assumpsit, brought by Skinner against Knott. The declaration contained only the common counts. The defendant filed the plea of the general issue, and, upon a trial by jury, a verdict and judgment was rendered in favor of the plaintiff for $128.42.

The defendant appeals.

*240Mr. Stephen B. Moore, for the appellant.

Messrs. McWilliams & Talla y, and Messrs. Bradley, Olden & Bradley, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

The only error assigned that we deem material to be considered, is, whether the evidence sustains the verdict.

That the appellee is entitled to a judgment in his favor, is established by the testimony of the witness Gay as well as the evidence of the appellee.

It is apparent, from the evidence introduced by both parties, that the present verdict is for too much. The appellee admits the payment of $77.07 on the blacksmith bill, and does not deny, when on the stand as a witness, the bill of $67.55 testified to by Gay, except one item of $1.20 for flour. Had these credits been deducted from the highest amount sworn to by any witness, it would leave the verdict too high. We can see no reason why both of these credits should not have been deducted from the appellee’s claim.

The circuit court should have granted the motion for a new trial, and for its refusal so to do, the judgment is reversed and the cause remanded.

Judgment reversed,