majority"> MekriMON, J.

(after stating tbc facts). The plaintiff failed to comply with the agreement set forth in the record, and, under its provisions, by such default, became indebted to the defendant (íerson Hoffman in the sum of fifty dollars secured to him by the plaintiff’s promissory note for that sum of money.

At a reasonable hour of the day on which the plaintiff had agreed to deliver the goods to the defendant named, the latter went to and informed him that he was ready and prepared to comply with the agreement on his part, and desired to take an inventory of the goods. That he was so ready and prepared is not controverted, and that he was, must be accepted as the fact.

The plaintiff “ claimed ten per centum on the prime cost price of the goods, that this was what wholesale price, as per invoice from G. Oppenheimer & Son, meant,” and he then refused to allow the inventory to be taken, declaring tliat unless Hoffman would allow his demand, he, the plaintiff, ‘'‘'would not trade.” Hoffman declined to allow this demand, and left the plaintiff.

There could scarcely be a more palpable breach of the agreement on the part of the plaintiff. Tie refused to comply with its terms and effect. He made a demand unwarranted by it, and, without reserve or qualification declared to the defendant that he “would not trade” unless the latter would allow his demand. Hoffman was not bound to allow it; he was bound to comply with the agreement as far as he could, and he did so, when he was ready and prepared to comply with its requirements of him and so informed the plaintiff. He was not obliged to wait indefinitely or at all to see if the plaintiff would reconsider his refusal to deliver the goods; he had no reason to believe he would do so, and there is nothing in the agreement that can be reasonably construed to mean that the parties to it, each, should have all the first day of September, 1882, in which to decide whether or not he would comply with its requirements of him ; on the contrary, it *277 was expressly stipulated that, in case of non-compliance with it by either party, the non-complying party should pay the other fifty dollars.

The plaintiff was bound to comply with the agreement according to its legal effect; he failed to do so at his peril; and his failure and refusal to deliver the goods on the day specified, was non-compliance with it. His claim that ten per oentum should be added to the prime cost price of the goods was obviously unfounded. The plain terms of the agreement, left nothing to doubt, the prices to be paid were fixed, and they were the “ wholesale prices as per invoice from G. Oppenheimer & Son.” Any question as to prime costs and ten per oentum added thereto, was outside of and foreign to the agreement.

It seems that the plaintiff thought so himselfj for afterwards, ■on the same day, he proposed to abandon his demand. This proposition came too late; several hours before he made it, he had refused to comply with the agreement; one flat refusal was enough; this entitled the defendant to the forfeiture of $50, and relieved him from all obligations to take the goods at any price.

The testimony of the witness Oppenheimer was irrelevant and immaterial. The agreement was not denied; its terms were plain and to be interpreted by the Court.

The issue proposed by the plaintiff, in addition to those submitted to the jury, was not raised by the pleadings, and was immaterial; it referred to evidential facts that were in evidence for the proper purpose.

There was manifestly evidence that the plaintiff refused to comply with the agreement, and the Court properly refused to instruct the jury that there was none. There is no error of which the plaintiff has right to complain, and judgment must be entered for the defendant. Judgment accordingly.

No error. Affirmed.

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