DANIEL GEORGE, PLAINTIFF IN ERROR

v.

A. S. DRAWDY, DEFENDANT IN ERROR

Cockrell, J.

The declaration in this case consists of a special count upon breach of contract and the common counts. A demurrer to the declaration as a whole was overruled, and this constitutes the first assignment of error. To merit attention the demurrer should have been'confined to the special count. Gulf Lumber Co. v. Walsh, 49 Fla. 175, 38 South. Rep. 831.

Upon the tidal the evidence Was confined to a cause of action arising out of an alleged breach of contract; the plaintiff Drawdy contending that George absolutely de dined to carry out the contract, upon the pretense that he could not make good title, while George contended that he stood ready to-deliver title and possession but that Drawdy refused to accept. We fail to find any contest over the miarketableness of George’s-title; and need not pass thereon. Upon the real issue, as to who breached the contract, (the evidence was s'o evenly balanced as to make it a question for the jury upon the credibility of the witnesses for the respective sides.

There was verdict and judgment for the plaintiff in the sum of $1792.00 and costs. We cannot find in the evidence a basis upon which this amount, arising out of a contract can be properly sustained.

The contract, upon which one hundred dollars was paid down was for the sale and delivery on June 1, 1904, of all the real estate owned by Drawdy in Volusia County, also “one hundred and fifty bushels of corn, one syrup kettle, one cane mill, forty hives of bees, forty heads of hogs and all of the cattle owned by him, the said Daniel George, individually or as guardian of Malston George 'and Hobson George, minors, on the range of the following marks and brands,” then follows the description, all for nine thousand dollars.

This contract, which is in writing and under the seals of the parties, makes no mention of the number or kind of the cattle, but “all the cattle” of a certain mark and brand upon the range belonging to George, individually or as guardian of the two-minors. There was some evidence, molt satisfactory, as to itbe market price of cattle of a certain class per head, but no one testified for the plaintiff who-had or claimed to have knowledge of the number and class of the George cattle. There is testimony admitted over objection that pending the negotiations, which were consummated in the written contract, ‘Air. George did not guarantee any amount of cattle, but supposed to be 1000 or 1200 head.”

This is not an action for deceit or for fraud in procuring the contract, nor was the testimony offered in rebuttal or impeachment, but as the primary and sole evidence of the plaintiff's quantum of damages, and it is made as effective as if written into the contract itself. Drawdy shows by his own testimony that he relied not on this supposed statement by George, but upon personal knowledge of the number and kind of the cattle and upon information acquired .through third persons whpi were well informed, and yet makes no effort to get direct evidence upon this vital point. The cattle made up the principal, in fact the controlling, part of the consideration for the contract, and to sustain a substantial verdict, over the hundred dollar forfeit, there should be some direct evidence from which the jury may determine the excess of the market price over the consideration named in the contract.

It is easy to. find authorities to deny the use of the colloquium preceding the solemn written contract in an effort to establish a warranty of the number of cattle, Powell v. Edmunds 12 East 6; Maxwell v. Willingham 101 Ga. 55, 28 S. E. Rep. 672, and Thompson v. Libby, 34 Minn. 374, 26 N. W. Rep. 1, and while there may be b distinction between its use as a warranty and as an admission, we have found no authority for the distinction and as here pnes'ented, it is. too refined to be available.

The judgment is reversed.

Shackleford, C. J.. and Whitfield, J., concur. Tavlor, Hocicer and Parichill, JJ., concur in the opinion.