Opinion of the Court by
If Cassady purchased the cattle for Huber, it would have been competent for appellant to prove the statements of Huber in relation to the contract. But appellant failed to disclose what Compton would prove in relation to the statements made by Huber, and this court cannot tell unless appellant had announced to the court what the conversation was which he would prove by the witness, and the same had been incorporated in the 'bill of exceptions, that it would have been material for appellant, and as it does noit appear that appellant was prejudiced by the ruling of the court, it cannot be a cause of reversal.
It is alleged in the petition that appellee purchased the cattle at $3 per hundred to be paid on delivery, and that appellant failed to deliver the cattle at the time and place of delivery, and that the cattle were worth $3.50 per hundred; which, by any fair or reasonable interpretation, means that they wer'e at the time and place of delivery worth $3.50 per hundred.
It was not made the duty of appellee either by the terms of the contract, or by the law, for him to make the necessary ¡preparation to weigh the cattle.
There is nothing in the objection that Cassady did not sign the contract. Johns was the vendor, and by his writing was bound to deliver or to tender the cattle, and if Cassady had failed to attend to receive them, and he had' thereby suffered loss, the law afforded him ample remedy.
As to the price of the cattle, Rowtill proves they had advanced in the neighborhood from to Per cent, per pound, and he told appellant that they had so advanced, and he admitted it.
It is deemed unnecessary to enter upon a discussion of the *165competency of the evidence relating to the agreement on the part of appellant to accept the appellee’s check on the bank in payment for the cattle, as the evidence was noit objected to, but was permitted to go to the jury without exception.
Brown & Murray, for appellant.
H. C. Marlin, Wm. Beard, for appellee.
And perceiving no error in refusing instructions as asked by appellant, and in modifying those given, the judgment must be affirmed.