delivered tbe following opinion:

Tbis was a case where plaintiffs sued tbe defendants for a lot of rice sold to them, and wbicb tbe defendants refused to pay for, altbongb they kept it in tbeir establishment, on tbe ground that it did not come up to sample.

A trial was bad before tbe court and a jury on November '9, 1907. Plaintiffs proved that, out of tbe lot of rice which ■they sold tbe defendants, they only finally delivered 403 pockets; that tbe contract price was $3.65 per pocket, which would amount, to $1,470.95; but plaintiffs claim that because defendants did not pay for it, and as tbe market bad gone up, it was worth, at tbe time of delivery, a much higher price,— in fact, $4.50 per pocket; that defendants should pay tbe sum, therefore, of $1,813.50; and tbis is what they claim in tbeir complaint.

On tbe trial they proved that tbe market price at tbe time •of delivery was $3.90; and, in bis argument to tbe jury, counsel for plaintiffs waived any further claim, and specifically .asked tbe jury to return a verdict for $3.90 per pocket, wbicb would make $1,571.70, and be claimed judgment for tbis amount, with interest and costs. Immediately after tbis statement made by counsel, tbe court instructed tbe jury as follows:

“You are instructed, gentlemen, that tbe plaintiffs claim ■only for tbe 403 pockets which they claim they delivered to the defendants, but they claim that they are entitled to get *337"the market value, which they claim is $3.90 per pocket for the rice instead of $3.65, which it was sold at under the contract, because of the defendants refusing to receive the balance. And therefore, if you find that the 403 pockets were accepted as up to contract, or that they were in fact up to contract, and ■ought to have been accepted, then you will find for the plaintiffs,” etc.

The jury brought in a verdict in the simple form: “We, the jury, find for the plaintiffs, and assess their damages at the sum of $1,813.50, interest and costs.”

Nobody noticed that, under the evidence in the case and the claim of counsel for plaintiffs, made in argument, as well as under the instructions of the court, this was $241.80 too much, and that the proper amount should have been $1,571.70, as aforesaid, with interest and costs. On November 18th, the defendants filed a motion for a new trial, and about this time this discrepancy was discovered. In the meantime plaintiffs had caused an execution to be issued, and the defendants paid the entire judgment.

Counsel for plaintiffs now comes in, and, in an elaborate brief, resists the efforts of the defendants to have this amount refunded, and cites a lot of law which he claims is mandatory on the court to force it to do this injustice, because he says that, after four days, the motion for a new trial could not have been filed.

The same term at which this judgment was rendered is still open, and the court has complete control of its record, and it does not believe that the law obliges it, and therefore it will not permit such a palpable injustice as this to be done; and unless the plaintiffs will come into court within five days after the *338filing of tbis order and remit $241.80 of the judgment, ancl pay the same into court, for the use of the defendants, out of what they have collected, a new trial will be granted, and it is so ordered.