The opinion of the court was delivered by

This was an action of trover for a wagon. It appears from the statement of the case, that the defendant, as deputy sheriff, attached the wagon in question on a writ in favor -of one Skinner, as the property of Randall, -the defendant in that suit. The wagon was found in Randall’s possession and was taken therefrom by the defendant. The plaintiff in this suit claimed to he the owner of the wagon, and by said Randall as his agent, demanded it of the defendant, who refused to deliver it to him.

On the trial in the county court, the defendant introduced evidence tending to show that about two months after he took the wagon, he *81had an interview with the plaintiff, who told him (in answer to a question put to the plaintiff as to what he claimed in regard to the wagon,) “that all he asked was to have the wagon returned” to Randall, or to the place which the defendant took it from ; and that the defendant in consequence of such statement did, the next morning, return the wagon to the place from which he took it, Randall assisting him in so doing. There seems to have been no question upon the hearing below as to the plaintiff’s ownership of the wagon or as to its having been returned by the defendant. The principal point in controversy seems to have been, whether at the time the defendant returned the wagon the said Randall had authority from the plaintiff to accept it, and did accept it.

The court decided that conceding the facts to be true that the defendant’s evidence tended to establish, they would not constitute a full defence to the action, but could only operate upon the question of damages. In this we think there was error. If when the plaintiff told the defendant that all he claimed was-, that the defendant should return the wagon, it was the understanding between them that such return was to be a discharge of all claim he had upon the defendant for the taking and detention of the wagon, as well as for the wagon itself, such return would be a full answer to the plaintiff’s claim. The evidence clearly tended to show that such was the fact; whether it was so or not, was for the jury to determine and should have been submitted to them.

But it is said that question was submitted to the jury, and they found the fact to be otherwise, as the verdict shows, so that this error did not prejudice the defendant, as the result would have been the same, if the question had been submitted to the jury in this aspect of the case. If this was so there would be force in the position.

The court charged the jury in substance that if they found the wagon was returned by the defendant and accepted by the plaintiff, that would go to diminish the damages the plaintiff would otherwise be entitled to recover, to the extent of the value of the wagon. This makes the acceptance of the wagon by the plaintiff a material fact to be found by the jury, before they would be warranted in making the deduction ; and as the question of the acceptance of the wagon by Randall, and his authority so to do from the plaintiff, was the *82main point litigated before the jury, it is more than probable they turned the case upon that point, and returned a verdict for the value of the wagon, because they failed to find that upon the return of the wagon to Randall, he did accept it, or had authority to accept it in behalf of the plaintiff.

If the facts were as the defendant’s evidence tended to show, an acceptance of the wagon by the plaintiff was unnecessary and immaterial. If the plaintiff told the defendant that all he claimed gf him was that he should return the wagon to Randall, or to the place from which he took it, and he did thereupon immediately return it to Randall, or to such place, that would be sufficient, whether the plaintiff accepted it or not. What would have been the effect if the plaintiff had been present when the wagon was returned and had refused to receive it, we need not consider, as nothing of the kind took place. The fact that Randall refused to accept it, could be of no avail, as the plaintiff’s evidence tended to show that, at that time, Randall had no authority in the matter, and he did not profess to have, but told the defendant that he had nothing to do with it.

We think there was error in the rulings of the court as to the effect of the return of the property, upon the plaintiff’s right to recover at all, and also upon the question of damages.

Judgment of the county court reversed and case remanded.