Wheeler, O. J. —We are of opinion, that the court did not err in overruling the objection to the introduction of the plaintiff’s evidence. The defendant was to receive one-fourth of the increase of the stock for taking care of them, but he acquired no title or interest in the residue. They remained the property of the plaintiff, and she could maintain her action to recover them or their value. The gist of the action was the conversion by the defendant to his use of the plaintiff’s property; not the enforcement of a contract which was not to he performed within a year.

The statute of frauds has no application to the case. The defendant could not resist the plaintiff’s right to recover her property, or damages for its conversion, because he had had the possession of it for more than a year with her consent. hfor do we think there was error in the charge of'the court respecting the right of the plaintiff to maintain the' action.

We do not understand, from the evidence, that the plaintiff had assigned or transferred to the witness her right or interest in all her cattle which had come into the possession of the defendant, and which had been converted by him to his own use, or her right to recover of the defendant damages for their conversion. But we understand the witness ■ to have purchased all he could find, or all that had not been converted by the defendant to his use, and that remained to he found. And, in this view of the evidence, there was no error in the charge.

But we are of opinion, that the verdict was excessive, and that for this reason a new trial ought to have been granted. Taking the highest estimates furnished by the testimony of the plaintiff’s witnesses, and supposing the jury to have credited their statements rather than the testimony of the defendant’s witnesses, still, in that view of the evidence, they were not warranted in finding a verdict for the plaintiff for so large a sum. We cannot suppose they proceeded upon the idea of giving exemplary damages, for the charge of the court restricted their finding to the value of the missing cattle.

The plaintiff does not appear to have thought, nor does the court appear to have considered, the case a proper one for the awarding of exemplary damages. In any other view the damages are excessive. We are of opinion, therefore, that the court erred in refusing a new trial; for which error the judgment must he’ Beversed and the cause remanded.