The grounds of the motion for a new trial are that the court erred in its rulings on the admission of evidence, in giving instructions on its own motion, and in refusing to give instructions asked by the defendant, that the verdict i's not sustained by the evidence, and is' contrary to law and the charge of the court. The motion was' sustained general])', and a new trial ordered. The record does not show upon what ground stated in the motion the court granted a new trial. If the action of the court can be sustained upon • any of the grounds stated, the judgment must be affirmed. This court interferes more reluctantly with an order of a nisi prius court granting, than with one refusing, a new trial.
*167Tlie testimony of tlie plaintiff shows that he abandoned tlie contract in the summer of 1873, at which time there were four and one-half miles of good thrifty fence, the other two and one-half miles having been trampled out by stock belonging to Mr. Gibbs’ and Mr. Tift’s renters. This case was before us on a former appeal, and an opinion ivas announced at the December Term, 1873, which from some oversight has not been published. The action was originally commenced on the 29th of June, 1871. and was brought to recover the instalments then due. From the findings of the court it appeared that the hedge around the southwest quarter of section 28 was destroyed, without any fault of plaintiff. The plaintiff was permitted to recover for the sotting out and care of this portion of the hedge. On account of this the judgment was reversed. The opinion of the court employs the following language: “As we construe the contract, while the plaintiff is entitled to recover for each item of work as done at the prices specified, to be paid at the dates named, yet ultimately he is entitled to only the agreed price per rod for so 'much of tlie hedge as shall make a good lawful fence, sufficient to turn ordinary stock * . * * . Under our construction of the contract, then, the plaintiff could not properly recover ultimately for any work done on any part of the hedge fence that did not make a good and lawful fence, sufficient to turn ordinary stock, although the same may have been destroyed without any fault of plaintiff. And under the rule of law above stated, since it is manifest that he cannot perform his contract to make such fence out of the part so destroyed, he can have no right to recover for any work done thereon.”
When this case was before us on the former appeal the element of abandonment by the plaintiff, on account of the default of tlie defendant, was not in it. Still, under the doctrine of' the former opinion, the plaintiff cannot recover anything for that portion of the hedge which was trampled out, and had no prospect of becoming a fence, at the time of the abandonment, whatever may be the correct rule as to the portion of tlie hedge i'n good condition at the time. Based upon this estimate, and deducting the $256 paid for the setting of *168the first two miles, the verdict was for too large au amount, and is not sustained by the evidence.
i. practice : vercifut: offer to mmt. It is true the plaintiffj at the time the motion for a new trial was submitted, offered in writing to remit so much of the verdict as the court should deem excessive. But the plaintiff did not state the amount which be was willing to remit; nor for what sum he was willing to take judgment. The court might have fixed a certain sum for which the plaintiff" should accept judgment, or submit to a new trial. But it was entirely within the discretion of the court whether it would do so or not. The plaintiff, by an offer to remit so much of the verdict as the court should deem excessive, could not cast upon the court the duty of performing the functions of the jury. The action of the court granting a new trial may be sustained upon the ground that the verdict was not supported by the evidence. The parties differ radically as to the law of this case, but, as we are unable to determine from the record wliat view of the law the court ultimately adopted, we deem it proper for the present not to consider the instructions of the court. The judgment is
Affirmed.