The defendant Moore, under the, name of R. Moore & Co., contracted to buy from plaintiff, through one Tupper, its agent in New Orleans, one thousand cubic yards of macadam at a given price per cubic yard. The contract was as follows:
“R. Moore & Co. of Mobile, Ala. Gentlemen: We will deliver to barges on Mississippi river at or near foot of Girod street and at foot of General Taylor street, one thousand cubic yards of macadam at two 70-100 dollars per cubic yard. Our measurement to be checked by an engineer measurement at Port Eads. The terms of payment to be as follows: say, one hundred in cash, and balance due one-half estimate upon delivery to barges, and balance upon receipt of engineer at Port Eads. It being understood that we take no risk in delivery. We will hire carts and do all possible to make delivery during next week.
“Yours truly,
“T. Tupper.”
“Accepted terms as above stated.
“R. Moore & Co.-
“by R. Sheridan, Jr.”
*571The plaintiff’s complaint contained the common counts, and a special count alleging in substance the above contract and its breach. The pleas of which we need take notice were the general issue, and a plea of recoupment. On the trial of this cause fifty-two exceptions were reserved which here are grounds for as many assignments of error. It is not our purpose to discuss each one of the assignments of error, for the principles of law they invoke are few and malee this unnecessary..
It was proven by the plaintiff that the macadam, the subject of the sale, was in a warehouse in New Orleans and was examined by Sheridan, the agent of the defendant, before the contract to sell was consummated. There was no express warranty as to the quality of the macadam or its fitness for any particular purpose. The personal inspection by Moore’s agent of the lot of macadam from which his was to be taken, and his agreement to buy from that specific lot, precludes an implied warranty. A delivery of one thousand cubic yards of •this macadam “at the foot of Girod street and at the foot of General Taylor street,” was a compliance with his part of the contract by plaintiff, irrespective of the quality or suitableness of the macadam for the purpose for which it was bought. — Benjamin on Sales, §965. “When goods are sold on inspection, there is no standard but identity, and no warranty implied other than that the identical goods sold and no others shall be delivered.” — Carson v. Baillie, 19 Penn. 375; Deming v. Foster, 42 N. H. 174; Perry v. Johnston, 59 Ala. 648.
There was no fraud, or evidence thereof, on the part of the agent of plaintiff, Tupper, and therefore the assignment of error 43 is not well taken. The court may, well refuse a charge not based upon any evidence in the cause, even though the charge embodies a correct principle of law.
The introduction of the original contract, which was done in this case, cured whatever errors the court might have committed in permitting copies to be produced in evidence.
The thirteen assignments of error founded upon exceptions to the evidence of Tupper are not well taken. It does nót appear on cross-examination that Tupper’s statements were based on hearsay. He testified posi*572lively, and of Ms knowledge, that one thousand cubic yards of macadam were delivered to the barges.
There was no error in admitting in evidence the receipt signed by Eldridge, who was in charge of the barge. It was competent for plaintiff to prove the delivery of the macadam to a carrier or successive carriers in the execution of his contract. The delivery to the barge was of course not conclusive evidence, of a delivery to defendant; but it was competent evidence. This being so, the receipt was competent evidence unless objected to on grounds other than those disclosed by the abstract.
It was competent in this case for the plaintiff to show by parol testimony the macadam which, according to the written agreement, was to be sold. “As it is a leading rule in regard to written instruments, that they are to be interpreted according to their subject matter, it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers.” Greenl. Ev., §286.
In the plea of recoupment defendant sets out that plaintiff agreed to deliver 1000 cubic yards of macadam, and that he delivered only about 500 cubic yards, which was full of dirt and trash. Upon this plea plaintiff took issue. A plea of recoupment is in the nature of a new suit begun by the defendant against the plaintiff, and a joinder in issue on such a plea, like the general issue to a complaint, places on the defendant the burden of proving all the material allegations of the plea. It will be observed that it is not alleged in this plea that the macadam delivered was not the macadam bought; therefore, construing the pleading most strongly against the pleader, as we are bound to do, the condition of the macadam, good or bad, was not a breach of the contract, and the macadam delivered was the macadam bargained for. The other allegation that only 500 cubic yards were delivered, when it was bargained 'that 1,000 should be delivered, was the only material issue between the parties, not excepting, of course, the averment of the plea as to the damages sustained by the defendant.
Upon the defendant then the burden of proving two things rested: 1st, the failure to deliver the number of *573cubic yards of macadam called for by the contract, and 2d, the damage resulting from this breach. Unless evidence was introduced upon both of these averments, defendant cannot complain of the charges of the court in this connection. The defendant, we think, failed utterly to .prove that he had sustained any damage, assuming that there was a short delivery. There was no attempt whatever to show what was the market value of the macadam which plaintiff undertook to furnish to defendant. No evidence whatever was submitted to the jury from which it could ascertain the fact of defendant’s damage, to say nothing of its extent.
We need not notice other assignments of error. Upon examination of the record, we are of opinion that no error was committed prejudicial to the defendant; and the judgment of the circuit court is affirmed.