No question arises upon the pleadings, as no demurrer was interposed. The omission of the defendant to reply to the third plea, cannot be taken advantage of by him.
The evidence adduced by the plaintiffs, that the agent of the defendant had shipped the cotton to Mobile, and sold it for account of himself, and the defendant, was not irrelevant, though wholly unnecessary, as the defendant had not proved that the cotton was delivered, or offered to be delivered, to the plaintiffs. The conversation between the defendant’s agent and one of the plaintiffs, merely amounts to a waiver of the delivery of the cotton on the first January, 1845. The right to discharge the contract in cotton, was for the benefit of the defendant, and he must show that he delivered, or offered to deliver it in payment of the note. The evidence of the plaintiffs shows that the agent of the defendant sold it, and applied the proceeds to his own use, and that of defendant. Although this proof was unnecessary, on the part of the plaintiffs, it shows the utter want of merit in the defence.
There was no impropriety in the introduction of the original contract, for the sale of the land, which seems to have been offered under the third plea, denying that there was any written evidence of the sale.
Let the judgment be affirmed.