¶1In this ease the plaintiff failed to prove the contract alleged in his petition, and this appears from the testimony of his own witness. In May, 1875, Bollman, the witness referred to, sold the defendants a pile of bricks, which he estimated to contain between 40,000 and 50,000 bricks, at $8 a thousand. He informed the defendants at the time that there were two mortgages on the bricks, one to Owen for $192, and the other to plaintiff for $46. It was, therefore, agreed that defendants should pay $80 to Bollman, and the balance “to go in payments to Owen and plaintiff on the mortgages.” It turned out that there were only 84,000 bricks — had there been 40,000, as estimated, the price, at $8 per thousand, would have paid off' both mortgages. As it was, after paying the $80 to Boll-man, which was agreed to be paid in advance, the defendants paid the balance to. Owen, who had the first mortgage. And the plaintiff now insists on holding the defendants responsible on the assumption that their contract was unconditionally to pay his mortgage for $46. No such contract was proved, and the judgment for the defendants was, in our opinion, correct, without regard to the 5th instruction, upon the propriety of which it is unnecessary to express an opinion. Judgment affirmed.
¶2Affirmed.