¶1delivered the opinion of the court. The plaintiff states, that he sold a quantity of flour, amounting to $717 50 cents, payable in sugar, at the rate of seven and a *675half cents the pound—that the defendant gave him his obligation therefor, which, before the payment of it or any part thereof, was fortuitously lost or stolen—that the said obligation was not transferred.
¶2The defendant pleaded the general issue.
¶3There was judgment against him, and he appealed.
¶4His counsel urges, that the judgment ought to have reserved to the defendant the faculty of paying in sugar, and ordered the plaintiff to give security, to indemnify the defendant.
¶5The defendant has not urged, that he was ready to pay in sugar, according to his promise, but has denied, that he made the obligation on which he is sued. Under this plea he cannot contend he was always, and is still ready to deliver sugar. His obligation has therefore been, by his own act, turned into one to pay damages for the neglect to perform the original one, if the plaintiff demand those damages, i. e. the value of the sugar, at the time and place of delivery. The creditor of an obligation payable in produce, may on the failure of the debtor, provide himself with produce of the same kind at the market price, and require a sum equal to the purchase as *676damages. As such a purchase is a matter in which the defendant is without interest, damages may be demanded without its being made.
¶6The obligation to deliver the sugar was not such a negotiable paper, which might render the debtor liable to its assignee, without notice—as a promissory note for money, or a bill of exchange. The safety of the defendant does not require any security: for admitting that the obligation was assigned, the assignment would be completed by the notice given to the debtor. This is not pretended to have been done; and were it done, the defendant would be protected by the merger of his obligation in the judgment obtained on it.
¶7It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.