The opinion of the court was delivered, March 23d 1868, by

The defendant purchased a horse from the plaintiff in the month of August 1862, for the price of $175, giving his note for that entire sum, payable in three months, and took the horse into his possession. In the month of December following, he returned the subject of his purchase, and in lieu thereof purchased another horse from] the plaintiff for $150, giving his note for the price, payable- in ninety days. This second horse he sent back to the plaintiff a few days afterwards, and the plaintiff received him, though he did not surrender the note. On the contrary he declined to give it up, until the defendant came to see him. The evidence shows that he asked the messenger by whom the horse was sent, whether the defendant had not sent a note or money, to which the reply was “ no, hut that the defendant would come and fix it all right.” It may be assumed that both the contracts of sale were rescinded. But they were not rescinded until after they had been partially executed. The defendant enjoyed the use of the horses for a period of one hundred and twelve days. In the absence of any proof that the understanding of the parties was different, there is in equity and fairness a plain obligation on the defendant, not to pay the purchase-money for the horses, but to pay for what he' enjoyed, under the contracts of purchase. In some cases, when a special contract has been partially executed and then rescinded, the law raises a promise that he who has enjoyed benefits under it, will pay for what he has enjoyed. In such a case it requires but little evidence to show that such was the positive understanding of the parties. That in this case the plaintiff below understood he was to receive compensation for what the defendant had enjoyed, that is for the services of the horses, is evident from what he said when the second horse was returned. He refused to give up the note. He asked whether the defendant had sent money with the horse, and, when told that he had not, he asked whether the defendant had sent a note. He was answered in the negative, but was assured that the defendant would come and fix it all right. Eix what all right ? Clearly nothing was to be fixed, except compensation for the services of the horses, for the sales were rescinded by mutual consent. If *155this was evidence, it certainly did tend to show an express engagement to pay what was reasonable. It is altogether probable that without such a promise, the plaintiff would not have consented to receive the horse and give up the contract of sale. That the declarations of the messenger were properly received and submitted to the .jury in the cautious manner in which the court submitted them, hardly admits of a doubt. He was the agent of the defendant to return the horse and thus effect a rescission of the sale. The court submitted to the jury to find whether the declarations were part of the act of redelivering the horse, with instructions that if they were of the res gestee, they were evidence, and if they were not of the res gestee, they were not evidence. As the testimony is exhibited to us, we think the jury might well have found that what the messenger said, and the act of returning the horse, were both parts of one transaction. There was then no error either in refusing to rule out the testimony of John Heist or John T. M. Shiffert, or in the answers given to the defendant’s points. It certainly would have been error had the court instructed the jury that he was entitled to a verdict. The proof of an express promise to pay for the use of the horses may not have been very positive, but such as it was, it was for the jury rather than the court to determine its effect. Judgment affirmed.