HYDE vs. GRIGSBY, 11 La. 239

Bullard, /., delivered the opinion of the court. This is an action to recover damages from the defendant for an alleged violation of a contract of sale of a number of beeves. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed. The defence set up in the answer is, that the plaintiff had failed to comply with his part of the contract, which was to pay the price upon the delivery of the cattle or a part thereof.

It appears by the memorandum of the sale signed by the defendant, that the beeves were sold at six and a fourth cents per pound; and in order to ascertain the weight, an average steer was to be selected and slaughtered. The cattle were to be sent to Mobile, and each party to contribute toward the expense of their transportation. He further avers, that by a subsequent agreement the plaintiff agreed to pay two thousand dollars in cash, as part payment for the cattle, and to give satisfactory security for the balance of the price.

That thereupon a part of the cattle were put into a lot of the plaintiffs, where they remained several days without the pla-intiff’s complying with his engagement, It is manifest from the terms of the contract as well as from other evidence in the case, that the weight was to be ascertained, and the price paid in Mobile. The plaintiff offered to advance one thousand dollars, and give satisfactory . „ . _ T _ . . 7 , . . _ security for the balance, and it is proved that he was in good credit.

But the defendant refused to comply with his contract; on a tender of the money the defendant said he had concluded not to receive the money and not to send the cattle to Mobile. The defendant made no attempt to prove any subsequent contract, as pretended in his answer. It appears to us that the defendant was not only put in default, but that the plaintiff, in truth, offered to do more than he was bound to do by his contract, and that the verdict of the jury is fully justified by tbe evidence. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.