This was an action of Assumpsit, brought to recover damages for a breach of contract in not delivering hogs. The plaintiff alleged, upon the trial at Buncombe, on the last circuit, before his honor Judge Pearson, that he had purchased of the defendant a drove of two hundred and sixty hogs, for which he was to pay at the rate of $6:1? 1-2 cts. gross— the hogs to be weighed and delivered in Asheville, but the price, except $100. which was paid at the time of the contract, not to be paid until he should sell the hogs in Columbia, South Carolina; and that the defendant had failed to deliver the hogs in Asheville. The plaintiff, in support of his casé, offered -in evidence a receipt for the §100, in the follow-wor<^s:

“Rec’d. of Alexander Donaldson one hundred dollars, in part pay 0f two hundred and sixty hogs, to be delivered at six dollars and twelve and one half cents gross. This 16th of Nov. 1836. ;

(Signed) ALEX’R. DONALDSON.

JOHN - BENTON.”

Test, C. W. Latham-”

And a paper writing, under seal, purporting to be articles of agreement in the words following to wit:

“Articles of agreement made and entered into this day.— Whereas Alexauder Donaldson, binds himself, his heirs and assigns, to pay or cause to be paid to John Benton six dollars and twelve and one half cents gross, at Ashville, N. C., for two hundred and sixty hogs, when delivered. Witness, my hand and seal, this 16th of Nov. 1836. '

(Signed) ' JOHN BENTON, seal.

ALEX. DONALDSON, seal.”

Test, C. W. Latham.”

Both the receipt and the articles of agreement were executed at the time-when the contract was made, and the plaintiff kept the receipt and the defendant the articles of agreement.

His Honor intimated an opinion that the action should have been covenant; but reserved the point, and permitted the plaintiff to proceed; and he then proved that the defendant had- the hogs in Ashville at the time agreed on; that he requested the defendant to have them weighed and delivered; in reply to which the defendant asked him if he was ready to pay the money. The plaintiff replied, “ our agreement was, that .the money was to be paid in Columbia, when I sold the hogs, and I was to pay your expenses to go there and receive it-” The defendant'then said, “1 must have the money here — if I go to Columbia, I take the hogs there as my own.” The plaintiff then tendered the defendant the money in North Carolina Bank notes; but he refused to take Bank notes, except Kentucky bills or specie, saying that North Carolina notes would not do for him in Kentucky. The plaintiff was unable to procure specie or Kentucky bills.and the defendant drove the hogs to the South and sold them.

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