majority">Downer, J.

At the trial, the defendant .objected to any *66evidence being necessary under the complaint, because it does not state facts sufficient to constitute a cause of action. The complaint is on a contract for the- delivery by the defendant to one Ashford, at Milwaukee, on or before the 10th day of June, 1863, of certain watches and a clock. The plaintiff avers that the contract was assigned to him on the first day of June, and that on the 10th day of June he demanded of the defendant the watches and clock, and he refused to deliver them; and he avers a failure to deliver them “ either to said Ashford before the assignment of such contract, or to this plaintiff after said assignment.” There is no averment that the defendant ever had notice of the assignment, or that the articles were not by the defendant, after the assignment and before the notice thereof to him, delivered to Ashford. The complaint is clearly defective, and the circuit court erred in receiving any evidence under it; for the defendant had a right, after the assignment and before notice of it, to deliver the watches and clock to Ashford in performance of his contract.

2. Does the second defense in the answer set up facts sufficient to bar the action ? Taken in connection with the contract set out in the complaint, it contains, in substance, allegations that Ashford imported the.watches and clock in question without paying the duties thereon, and afterwards sold and transferred them to "Wermuth; and that the defend-. ant, after 'such sale, to settle two suits, one in favor of Ash-ford and both against Wermuth, executed and delivered the contract; that, after its execution and before the time for the delivery of the property, it was seized by the United States, and thereafter duly condemned and sold for the violation of the revenue, laws by Ashford in importing it. If Wermuth had agreed to return, or to sell and deliver, for a valuable and sufficient consideration, the property to Ash-ford, and had failed to perform his contract because the *67United States had seized and condemned it, it would be a good defense to an action by Ashford against him on the contract for a failure to deliver, that be Ashford was liable to Wermuth on an implied warranty of title of the same goods, previously sold by the former to the latter. And if Roddis executed the contract' as surety for Wermuth, then it is obvious be can make the same defense as Wermuth could if be bad himself executed the ¡contract and been sued thereon. But the second defense ip the answer is not in form or substance on the implied warranty of title by Ash-ford to Wermuth; and it is not entirely clear from the proceedings that Roddis executed the contract as surety for Wermuth. If be did not, but as principal, on a new consideration not connected with the -sale and transfer of the goods to Wermuth, the contract may be valid notwithstanding the'forfeiture to the United States. He fails to connect himself, by bis answer, with the title from Ashford to Wer-muth, and, for aught that'appears, may he liable for a good title. We have come to the conclusion, though with some hesitation, that there is no .error in the ruling of the circuit court as to the second defense.

3. The court instructed the jury that, “ as there is no conflict in the testimony regarding the delivery of the property by the defendant, and as I am of opinion that the testimony does not amount in law to a delivery, and fails to show a performance- of his contract by the defendant in respect to the watches and clock, I therefore direct and instruct the jury to return a verdict for the plaintiff for the sum of five hundred and ninety dollars, and interest from June 10th, 1863.” Is this instruction correct ? The testimony respecting the delivery is that of the defendant. After stating that he had no notice of the assignment of the contract set out in the complaint'till the 4th day of June, 1863, and that he and Ashford, on the 3d day of June, went to the *68express office, where, as lie was informed, the watches -and clock were, he says: “ I inquired of the delivery clerk if he had a parcel addressed to Otto Wermuth, for which I had an order; that order had been shown .and delivered to said clerk before. The clerk said, he had the parcel. I said ‘ I wish you to deliver it to this young man,’ indicating Ashford, who was just by me. The receipt book was produced; Ash-ford was going to sign? it. The clerk said I must sign it, as I held the order. I then signed the receipt book. The clerk then said, ‘ The charges are two dollars.’ I said to Ashford, ‘ I have nothing to do with that; I only' engaged to see these goods passed to you.’ He took out the money and paid it to the clerk. I drew aside from the place of delivery some five or six feet, leaving Ashford in front of the delivery, paying the money. The clerk then placed the parcel right in the opening, and pushed it forward, ready to be taken by Ashford. Ashford was in the act of taking it, his hands raised up to take it; don’t know as he touched the parcel. At the same moment, Mr. Rice put his hands on it, and said, £ I seize these goods,’ and took possession of them.” Did the express company deliver the goods to either Ashford or Roddis ? A receipt was executed .to it for them, its charges paid, and the parcel put in the opening or place of delivery for the party entitled to receive it; and he was there ready to receive it. This, if we understand the testimony rightly, was the last act the company had to perform to complete the delivery on its part. To whom were the goods delivered ? Roddis had given a verbal order to deliver them to Ashford, and the latter was there waiting to receive them, and just about to take them as the United States officer seized them. If there was a delivery to any one by the company, and we think there was, it was to Ashford. We hold the instruction erroneous.

By the Court. — Judgment reversed, and a venire de novo awarded.

*69On a motion for a rehearing, respondent’s counsel stated that it appeared from the judgment roll sent up that the original answer was demurred to, and the demurrer sustained ; and if the appellant neglected to have that demurrer applied to the complaint, this was a waiver of any defect in the complaint. Counsel also further insisted upon the first and third points taken in his first brief, as above given. The appellant’s counsel answered, that a defendant may object at the trial to the sufficiency of the complaint, without having, previously taken the objection; that the apparent admission in the first answer that defendant had notice of the assignment at the time of the seizure of the goods, was not an admission of notice at the time óf the delivery to Ashford, since the latter act preceded the former: and that defendant, after filing an amended answer, was not bound by such erroneous admission in the first.

Rehearing denied.

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