majority">Hough, J.

On the 27th day of March, 1875, the plaintiff sold to the defendant Allen, twenty steers in Grundy county, to be delivered on the 2nd day of April, 1875 ; seventy-four head of cattle in Marion county, Iowa, to be delivered on the 1st day of May, 1875, and a certain lot of hogs following said cattle, supposed to be about 115 head, to be delivered with said cattle, all at 5| cents per pound. The defendant Allen, received the twenty steers and paid for the same on delivery. When the remainder were delivered and weighed, the residue of the purchase money was to be paid, with the exception of $300, which sum, in the language of the contract, was to be paid “ as soon as the party of the second part (Allen) returns after shipment of the first steers, say on or about the 10th day of April, 1875.” On the 8th day of April, 1875, the note sued on was executed and delivered to the plaintiff' in lieu of the said sum of $300, agreed to be paid at that date. At the time fixed for delivery, the defendant Allen refused to receive the Iowa cattle on the ground that they were not as good as plaintiff had represented them to be. It appears from the record that before the sale was consummated plaintiff had offered the twenty steers to defendant !at five and a half cents, the Iowa cattle at five cents, and the hogs at six cents per pound, which offer was declined, and the parties finally agreed upon 5f cents, the sum named in the contract, for the whole.

The defendants averred in their answer that the note in suit was for part of the purchase money of the Iowa cattle, *484and pleaded as a defense the alleged false and fraudulent representations of the plaintiff as to the quality and condition of the cattle. The plaintiff denied all fraud, and averred that the $300 stipulated to be paid on the 8th day of April was earnest money on the Iowa cattle, and was to be considered as liquidated damages in the event the defendant Allen should fail to perform his agreement, and that the note in suit was given in full payment and discharge of said sum of $300. The testimony as to the representations of the plaintiff concerning the cattle, was conflicting. There was a verdict and judgment for the plaintiff, and the defendants have appealed.

It is.not usual to pay earnest money where the contract is in writing, though we see no reason why such a transaction when had, should not be upheld. The civil law provided for giving earnest in all cases, whether the sale was in writing or not, and either party could rescind the sale by forfeiting the amount of the earnest money, without any stipulation to that effect. Benjamin on Sales, 147. But earnest money is not to be confounded with part payment. They are different things, and the 6th section of our statute of frauds and perjuries expressly distinguishes between them. Story on Contracts, § 1007 ; Benjamin on Sales, 144. The contract before us unquestionably fixes the character of the $3^)0 stipulated to be paid, as part payment, and not as earnest, and testimony to show the contrary would have been inadmissible because it would have contradicted the.writing. The contract required the installment of $300 to be paid before the delivery of the Iowa cattle, as an inducement, doubtless, to the fulfillment of the contract by defendant Allen, but in the absence of testimony showing that the note was delivered by the defendants and received by the plaintiff in payment of said $300, the delivery and acceptance thereof amounted only to an alteration of the original contract, and a change of the time of payment from the time fixed in the contract to the time fixed in the note. The testimony *485fails to show any such a greement, and though the plaintiff pleaded it in his replication, he did not testify to it himself, or otherwise attempt to establish it at the trial. If there had been any testimony tending to show such an agreement, the question should have been submitted to the jury. Treating the note then as an alteration simply of the terms of the original contract as to the time of payment, the plaintiff must fail in his action. If the defendant wrongfully refused to complete the contract of sale by accepting the cattle and hogs, the plaintiff’s remedy is not by action for any portion of the purchase money, but for damages for breach of the contract of sale. Although the plaintiff sued upon the note, the instructions given seem to proceed upon the theory that he had sued for a breach of the contract of sale. The case was improperly submitted to the jury, and the judgment of the circuit court will be reversed and the cause remanded.

All concur except Henry, J. who- dissents.

Reversed.

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