The plaintiff sues defendant for a balance of $226.25-100, balance- due on the purchase prfce of $231.25-100 of certain furniture bought by the latter, who refuses to accept delivery or to-pay the balance due.
The defendant pleads that ”he had Selected a bed room set from plaintiff and put up a forfeit of five dollars on same, that having immediately thereafter decided not to buy Said bed rodrri set he allowed said plaintiff to retain the said five dollars forfeit and notified them of his intention not to take the furniture.”
Three witnesses swear that the payment of five dollars was not forfeit money to bind the sale, but a payment on account of *323an actual sale; the defendant swears it was forfeit money, but is unable to explain why he should have deposited that sum when, as he claims, he had not determined to buy from plaintiff and intended to visit other stores.
April 30, 1906.This is rather unbusiness like and not very plausible.
The testimony tends to show that the true reason why defendant refused to receive the goods and pay the price is that he subsequently ascertained that the brother of the young lady whom he was about to marry intended giving her a set of furniture.
The record confirms the conclusion of the district judge who heard and saw the witnesses.
The judgment is affirmed with the understanding that upon payment of the same the defendant shall be entitled to delivery of the furniture in controversy, defendant to pay costs of both courts.