#### N. Frankhouser, v. J. J. Neally.

No. 399.

*Jury*— Disregard *of Instructions.*Where, from the special findings and the general verdict, it appears that the jury disregarded an instruction given by the trial court concerning a material matter in issue, the judgment based on such verdict must be reversed. *(Irwin v. Thompson,*27 Kan. 643.)

Error' from Osage district court; William Thomson, judge.

Opinion filed July 21, 1899.

Reversed.

*Pleasant & Pleasant,*for plaintiff in error.

*Isaac Farley,*and *L. T. Wilson,*for defendant in error.

The opinion of the court was delivered by

Milton, J.:

In this case J. J. Neally recovered judgment before a justice of the peace of Osage county, in 1890, against N. Frankhouser, who was then sheriff of that county, the action being on an implied contract for the value of 1200 bushels of corn improperly seized and sold by the sheriff under an execution against W. L. Neally, W. Z. Neally, and George W. Neally. The defendant appealed to the *823district court, where, at the June term, 1890, the plaintiff obtained judgment in the sum of $172.64. That judgment was reversed by the supreme court. *(Frankhouser v. Neally,*54 Kan. 744, 39 Pac. 700.) The action was again tried in the district court of Osage county on November 21, 1890, resulting in a verdict and judgment for the plaintiff below. The defendant filed no pleading. The jury in. the last trial allowed $168 for the value of 1200 bushels of corn at fourteen cents per bushel, and $59.36 as interest on the value of the corn, and found specially that the sheriff levied on and sold 1200 bushels of corn, while the sheriff’s return on the execution showed that he sold 945 bushels and 60 pounds at six cents per bushel.

The jury also found that the valúe of the corn at the time it was sold was fourteen cents per bushel; that the corn, which was in an uncovered pile in a pasture, was not in a marketable condition at the time of the sale by the sheriff, for the reason that a herd of cattle had broken in and trampled on the corn and had eaten a considerable quantity thereof before the sale, but that there was no evidence as to how much was eaten. There was evidence that the plaintiff accepted from the owner of the cattle which had damaged the corn a certain sum in settlement of the claim for such damages. The testimony showed that the highest market value of marketable corn was fourteen cents per bushel. The court instructed the jury that they should take that fact into account in estimating the amount of the plaintiff’s recovery, and that he was not entitled to recover “more than the value of the corn that was left and in its said damaged condition.” A witness for the defendant testified that the cattle were at the corn four different *824nights, and that the whole pile of corn was injured, and that from three to four hundred bushels were destroyed.

While, under the evidence, the plaintiff was entitled to a recovery for the value of the corn, it is clear that some of the special findings of the jury are inconsistent, and in certain respects contrary to the evidence. It is apparent, also, that the jury overlooked or disregarded the court’s instruction to the effect that they could allow for the value of the corn in its damaged condition only. It is evident, also, from the general verdict that no allowance in the defendant’s favor was made on account of the money received by the plaintiff for damage done to the corn by the cattle.

As the record stands, we are unable to modify the judgment. It will therefore be reversed, and the cause remanded for a new trial.