HUNT, J.

The proposition "that if the value of the vessel and her net freight together, did not exceed $3,000, the plaintiffs were not entitled to recover," was sound, and the judge erred in refusing so to charge the jury. The judge erred in the charge actually made, "that if they should assess the value of the vessel at the contract price, or less than that, then no damages could be given to the plaintiffs on account of the vessel, but, that the plaintiffs would nevertheless be entitled to a verdict for such net freight as the jury should find had been made on this trip." The contract for the purchase of the vessel and her freight was entire. The two subjects together were purchased and sold at the price of $3,000, and as one purchase and sale. There is no power or right of separation into parts. If the aggregate value of the vessel and her freight, did not exceed the price agreed to be paid for them, then no damages were sustained by the defendant's refusal to deliver. That this charge was erroneous, was also the opinion of the General Term of the fifth district, the opinion being delivered by the same judge who presided at the circuit. The judgment was affirmed upon the ground, that although the charge was erroneous, it was cured by the verdict of the jury, and that no injury was sustained by the defendant in consequence of the error.

If it is possible that the defendant was injured by this error, the verdict must be set aside. It is not for the defendant to show how or to what extent he was prejudiced. The existence of the error establishes his claim to relief. If the plaintiffs wish to sustain the verdict, it is for them to show that the error did not and could not have affected it. ( Thacher v. Jones, 31 Maine, 528, 534; Lane v. Crombie, 12 Pick. 177; Clark v. Dutcher, 9 Cow. 674; Camden and Amboy R.R. Co. v. Belknap, 21 Wend. 354; The People v. Wiley, 3 Hill, 194.)

The plaintiffs insist that this is established. They insist that if the jury did not find the vessel to be worth less than $3,000, then the latter portion of the objectionable charge, that the plaintiff would still be entitled to the value of the net freight, was not applicable. The contingency therein stated did not occur. The verdict of $700 is claimed to be conclusive evidence that the vessel alone was worth more than $3,000, as no witness put the value of the freight at more than about $200. This may be true, and I think it quite probable that it is. It would, however, be unsafe to disregard an admitted error on this theory. No one can certainly say how the minds of individual jurors are affected, or how an united result was reached.

The fact, as charged by the judge, that the parties had themselves, by their contract, fixed the value of the vessel at $3,000, was evidence that it was worth that sum. Here were conflicting valuations by different witnesses, ranging from $2,500 to $5,000. Can any one undertake to say that some juror was not influenced by this statement, of its value, and, in consequence thereof, added one hundred dollars or two hundred dollars to the sum he was willing to agree upon as a verdict, more than he would otherwise have done? With the defendant striving to show that the vessel was worth but $2,500, and the plaintiffs claiming a larger sum, it would be rash to say, that an assertion by the defendant deliberately made, and in writing, that the vessel was worth $3,000, did not weaken his case and strengthen that of the plaintiffs. The judge in substance charged that the defendant had so asserted and agreed. A new trial should be ordered.

All the judges concurring, except BOCKES and PARKER, JJ., not voting,

Judgment reversed, and new trial ordered.