#### William K. Stahl et al., appellants, v. Stephen B. Ansley et al., appellees.

Jtppeal from Jo Daviess.

In an action of assumpsit for goods sold and delivered, and money had and received, it appeared in evidence that the plaintiffs left with defendants certain eases of boots and shoes to sell on commission; that all but two of the cases were sold and the proceeds thereof paid to plaintiffs before the commencement of the suit. There was no evidence of the sale of iho residue, or of a failure to deliver them to plaintiffs on request. The jury returned a verdict in favor of the plaintiffs-. JfeM, that the verdict was unwarranted, the jury having no right to infer a salo of the goods and charge the defendants for money had and received, or to infer an appropriation of the goods by them and thereby charge them, as purchasers, for the value.

Assumpsit in the Jo Daviess Circuit Court, brought by the appellees against the appellants. The case was heard at the March term 1845, before the Hon. Thomas C. Browne *33and a jury. Verdict and judgment for the plaintiffs below for $45.

The defendants moved for a new trial, because the verdict was against law, the evidence and the instructions of the Court, which motion was overruled.

The substance of the evidence appears in the Opinion of the Court.

C. Gilman, and E. B. Wasliburne, for the appellants.

J. Butterfield, for the appellees,

contended that no principle of law was involved in the decision of this cause, and that the judgment should, therefore, be affirmed. It was a question of evidence, the jury had passed upon it, and their verdict ought not to be disturbed.

The Opinion of the Court was delivered by

Treat, J.*

This suit was commenced in September, 1842, by Ansley & Co. against Stahl & Brewster. The declaration was in assumpsit, for goods sold, and money had and received. Pleas, non assumpsit, and payment. Trial before a jury, and verdict for the plaintiffs for $45. The Court overruled a motion for a new trial, and judgment was rendered on the verdict. The defendant tendered a bill of exceptions embodying the whole of the testimony. They now assign for error, the refusal of the Court to grant them a new trial.

The evidence shows this state of facts. During the summer of 1842, Ansley & Co. left for sale certain cases of boots and shoes with Stahl & Brewster, who were commission merchants. They sold all of the cases but two, and paid over to Ansley & Co. the proceeds before the commencement of the suit. There was no evidence of a sale of the residue of the goods, nor of a failure to deliver them on request. On this state of case, the verdict was unwarranted. The jury *34was not authorized to infer from the evidence, a sale of the goods, and so charge the defendant for money had and received to the plaintiffs’ use; nor an appropriation of the goods by the defendants to their own use, and so charge them, as purchasers, with the value.

The judgment of the Circuit Court is reversed, with costs, and the cause is remanded for -further proceedings.

Judgment reversed.

*

Wilson, C. J. did not sit in this cp.se.