LEVY, J.
(after stating the facts as above).
[1,2]
Appellant insists that the court erred in entering judgment for the plaintiff on the findings of the jury and under the evidence in the case. Construing th'e findings of the jury in the light of the evidence, it is believed there is no conflict in the findings. The jury found, it is thought, that (1) the parties finally effected the exchange under the same terms as provided in the written instrument of January 25, 1915, which' were that the price of the land should be fixed at $26 per acre and the dry goods were to be valued at the cost and carriage of same; and (2) though the appellee on the final agreement of February 20th took the dry goods at the price then marked on them, he at the time did not know and had not been informed that the goods had been re-marked since January 25, 1915. And the evidence shows that after signing the written instrument of January 25, 1915, and before the taking of the inventory in February, the appellant caused a portion of the dry goods to be re-marked as to the cost price of th'e same. The issue was as to whether, as alleged and claimed by the appellee, this re-marking was a dishonest estimate of the price of the goods, and was done to deceive and defraud the appellee in the exchange; or, as claimed by the appellant, there was a re-marking of a small portion of the goods, and that was done to correct and represent the real cost and carriage price of the same, and of which appellee was informed, and finally agreed to receive such goods at that price. The effect of the findings and the evidence was to authorize a judgment for the appellee. But, as claimed by th'e appellant, the amount of the judgment is not warranted by the evidence and the jury findings. The jury found that the goods were re-marked $500 above the first marking. This was the only amount of which appellee may claim he was defrauded through the alleged re-marking of the goods, and for which he should have judgment in his favor.
There was no finding of the jury, nor any evidence to support the finding, that fraud or deceit was practiced by the appellant in the removal of the goods or in the quantity delivered to appellee. Appellee, at the time he finally agreed to the exchange in February, was present and inspected the goods, and saw, or could have seen, the quality and salability thereof. And appellee cannot recover for removal of the goods under the written instrument of January 25 th; for, as clearly proven, it was refused to be carried out by the appellant, as he was authorized by its terms to do, before February 20, 1915. The finding of the jury is, not that the instrument of January 25th was carried out and completed by the parties, but merely that the parties finally traded on th'e same terms respecting prices as those incorporated in the instrument of January 25, 1915.
The judgment is modified, so as to adjudge a recovery in favor of the appellee for $500, and, as so modified, is affirmed. The cost of appeal is taxed against appellee.
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