The auditor reported a balance due to the defendant, and the county court rendered judgment on the report for the defendant, to which the plaintiff excepted. This result was produced by the' disallowance of an item in the plaintiff’s account by the auditor of twenty-five dollars for balance due on a horse.
The auditor reports that the plaintiff sold to the defendant a
The defendant claimed the contract to be, that in addition to the thirty-five dollars paid, the plaintiff was to have the colt if the mare brought one, that the plaintiff assumed the risk of the mare being with foal, and if she brought no colt the defendant was not to pay more than thirty-five dollars. The auditor found the contract to be as the defendant claimed, and also that the mare was not with foal at the time of the trade. It is not now questioned but that the county court decided correctly upon the facts reported by the auditor. But upon the trial before him the auditor allowed the defendant to prove, against the objection of the plaintiff, that at the time of the trade the mare was wholly without value ; and the plaintiff now insists that this evidence was erroneously admitted by the auditor, and that therefore the judgment should be reversed.
It does not appear from the report for what purpose this evidence was offered or admitted. It might have been offered for the purpose of showing an entire failure of consideration for this item, and perhaps was legally admissible for that purpose ; this is the view now taken of it by the defendant’s counsel. However this might be, it does not appear from the report that this evidence was in any way used by the auditor in determining what the contract was between the parties.
But if it had been, we'do not think it was erroneous. The parties were in dispute, and their evidence conflicting, whether the defendant was to pay thirty-five dollars or sixty dollars for the mare, and it became necessary to resort to circumstances and probabilities to determine which was right. As showing a probability in favor of the defendant’s version of the trade, we think it was competent for the defendant to prove the value of the mare to be even less than the sum he agreed he was to pay. Where the disparity between the value of property, and what is claimed to have been the contract price, is small, and within the fair range
Judgment affirmed.