Opinion,

The contract in this case, as originally made, was for the sale and delivery by Regen to S. Long & Son, of “three hundred tons of ochre, more or less, now lying at a certain ochre factory at Topton,” etc.; the ochre was to be “ ground, floated, barreled, and delivered on the cars at Topton or Hancock station, inside of three months,” etc.; Long & Son to pay at the rate of $9.00 per ton. The contract was afterwards amen-ded, by extending the time for its fulfillment for three months from July 24, 1885, and reducing the price from $9 to $8 per ton. The provisions of the contract were further altered by parol, in this, that S. Long & Son undertook to prepare the ochre for market; they made a contract with Fritch & Brother to do the work at $5 per ton and Regen had no further care in its preparation. The plaintiff alleges, that Long & Son undertook this preparation of the ochre at $5 per ton, according to their contract with Fritch & Brother, and agreed to pay to him the remaining $8; the defendants allege, however, that Long & Son were to deduct the actual expense, whatever that might be, from the $8 per ton and pay Regen the balance.

*411Fritch & Brother did prepare 62 tons for market, when they were stopped by Long & Son, who said the- ochre was too gritty, and would have to be refloated. Long & Son thereupon re-floated the whole lot, including that ground and barreled by Fritch & Brother. The plaintiff testifies that the ochre had already been floated, that he sold it as it was — “just as it stood” — and that it simply remained for him to grind, barrel and deliver it on the cars. The defendants, not specifically denying this, say that Regen represented the ochre to have been already sufficiently floated, which proved to be untrue; that they were obliged to refloat all of it, and that the weight, by the removal of the impurities, was greatly reduced.

There was evidence to show, that all the ochre at Topton was removed by Long & Son, and the plaintiff claimed that it weighed 272 tons, and that he is entitled to recover at the rate of |3 per ton. The defendants maintained, however, that when the ochre was refloated and prepared for market, there was only about 133 tons, and that the expense of preparation was so great as to much more than cover the whole price.

At the trial, the plaintiff proposed to prove the amount of ochre at Topton, by the persons who hauled it there ; this was objected to, upon the ground that the ochre, at the time it was delivered at Topton, was wet or damp, and that its weight in that condition would furnish no evidence of its weight when prepared for market; and further, that as the plaintiff had admitted-in his testimony that the weight, at the time of shipment, was to be accepted by the parties, the evidence offered was immaterial. To this the plaintiff replied, however, that in the respect of its purity, he sold the ochre “ just as it stood; ” that in refloating it, much of the material was lost; that the defendants, by this process, had obtained a finer and a purer article than he agreed to sell; and that therefore the weight at the time of shipment furnished no proof of the weight of the ochre covered by his contract.

In this condition of the case, we cannot see how the court could have excluded the evidence, contained in the offer; for, if the plaintiff’s allegations were true, the defendants had destroyed all means of proof of the real quantity of ochre, embraced in the sale; and, whilst the evidence of its weight at the time it was hauled to Topton might no.t be accurate, it was *412certainly proper for the consideration of the jurors, in the event of their adopting the plaintiff’s theory of the case, in approximating its proper weight. On this branch of the case, the learned court instructed the jury, in the plainest manner, that there was evidence that the ochre was damp and moist, when delivered at Topton, and that, as it was of course to be barreled in proper condition, it was for the jury to determine to what extent its weight would be diminished when dry; on the other hand, if they accepted the defendants’ theory of the case, then as the ochre had to be refloated, its weight at the place of shipment must be taken, and they should find their verdict accordingly. The testimony was contradictory. The veracity of the witnesses, and the conflict in the evidence was for the jury, and they were entitled to hear the evidence bearing upon both sides of the case, in order that, as they might adopt one theory or the other, they would be able to estimate the weight of the ochre.

If the plaintiff’s contention were the correct one, the defendants had made it difficult to determine the weight, and, although when delivered at Topton, it may have been damp or moist, the plaintiff, under the circumstances, had a right to show what its weight in that condition was ; it was not more difficult, perhaps, to estimate how much weight was added by the moisture, than to say how much was lost by the process of refloating. It was for the jury, from this and all the other evidence in the cause, to determine, approximately, its true weight when dry.

The receipts which were offered in evidence were used by the witness to refresh his recollection; after reading them, he said that he hauled ochre and deposited it at Topton, to the extent or amount specified therein, and the receipts were read simply as a statement prepared by the witness, fixing the several quantities delivered at the dates designated respectively. The testimony was of the most conflicting character, and it was for the jury to find the facts. Upon an examination of the whole ease, it would seem to have been fairly submitted; if the defendant has been wronged, it is because he failed to satisfy the jury.

The judgment is affirmed.