HADLY v. PUGH, GANO AND LEE, 1 Ohio Ch. 554

Lane, J. The contract is valid: you may go on with your defence. Lane, J. Any thing which discharges the obligation of the con-' tract, is admissible under non assumpsit without special plea. The objection is overruled. Storer and Fox, contra, cited 8 Wend. R. 435. Lane, J. to the jury. If you are satisfied from the evidence, that the contract was fulfilled or abandoned in November, your verdict should be for the defendants.

If not fulfilled or abandoned, and the plaintiff tendered the salt under the contract, which was refused, he had a right to leave it for the defendants and recover the value, or he might keep it at the defendants’ risk, using reasonable diligence to preserve it and recover the value; or he may sell and recover the difference between the contract and market price; but if he keep, or use, or sell the salt, and do not account for it, he will be held to have sold at market price, and allowed only to recover the difference between that and the contract price. Verdict for the defendants.