This was an action oe claim and delivery, tried before Graves, J., and a jury, at the February Term, 188S, of Craven Superior Court.

The plaintiff testified that during the year 1885, and since, he was doing business in Richmond, Va., as dealer in leaf tobacco for the manufacture of cigars, and that during said time the defendant Erdmann was doing business in New-bern, N. C. That on or about the 28th of November, 1885, the plaintiff received from said defendant a postal card as follows:

“ NewberN, November 27, 1885.

“ Dear Sir : Are you still in the leaf business ? If so, send me sample of some binders, good stock, and samples of Havana and Havana wrappers if you have some real nice stock on hand. You may also send me samples of Husto-rick wrapper if you have nice goods.

“Yours, &c.,

“0. ErdmaNN.”

To which plaintiff replied as follows:

“ December 1, 1885.

“ Dear Sir : In reply to yours of the 27th, I have sent you the following samples, per express:

“ Yeg. 20 Havana, @ $1.10; do. genuine V. A., @ $1.25; •0 do. wrappers, @ $1.25; 876 No. 488-89 wrappers, (co, $1.25; 242 No 466-86 wrappers, @ 35c.; 151 No. 483-83 wrappers, @ 35c.; 11 No. 486-86 binders, @ 12c.; 16 No. 487-87 do. @ 12c

“Terms, 3, 4 and 5 months notes. I have put these goods down very low, and hope to receive your order, as I feel sure the goods will give you entire satisfaction. Awaiting your prompt reply, I remain,

“Yours, &c.,

“Chas. Millhiser.”

Not hearing from Erdmann in the meantime, the plaintiff, on December 13, 1885, sent to him a letter, as follows:

“ Please let me hear from you in regard to samples ‘ leaf ’ sent you December 1, from which I hope you have been able to make a selection. Trusting to hear from you, and soliciting your kind favors, which shall have prompt and best attention,

“Yours, &c., Chas. Milli-iiser.”

That Erdmann received the samples in due course, and also the letters above set out; and on December 27, 1885, the plaintiff received a letter from Erdmann, as follows:

“ NewberN, December 25,1885.

“Dear Sir: You can send me the following goods: Case 242 and 151, the two best bales Havana No. 16 and 6; and the binders I don’t like; I must have better ones; if you have better, you may send me one case, and I would like to have a nice case of cheap cigars at about $10 per thousand, put up 50 in a box.

“ Hoping business is good with you,

“ I am,- &c.,

“ C. ErbmaNN.

“ P. S. You send the tobacco ; be sure and give me weight for government book.”

That on December 28, 1885, the plaintiff mailed to Erd-mann the following letter, which contained the invoice and the three promissory notes therein mentioned, all of which were received :

“Dear Sir: Your favor 25th received, and I hand you enclosed invoice of two cases wrappers and two bales Havana, shipped by steamer as per your order. Am sorry the binders do not suit you. As I do not handle any Penn, cigars I turn your order over to Messrs. H. Brownheld & Bro., who said they would send you samples.

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