delivered the opinion of the court. This case commenced by attachment. The petition alleges a contract to have been entered into between the plaintiff and defendant, andby the failure of the latter to comply with if, he owed the sum of six hundred *98dollars, for which judgment is prayed against , ■ , & him, with interest, damages and costs.

rp^e judge was of opinion the plaintiff had not made out his case, and non-suited him. He appealed.

We are of the same opinion with,the judge below. The contract introduced in evidence shows the defendant mortgaged to the plaintiff a negro boy named Stephen, on the condition, however, that it should be null and void on the delivery of a note of the petitioner for six hundred dollars, and that if the note was not delivered, the boy should become the property of the plaintiff. This agreement the defendant has failed to comply with.

But it does not follow as a consequence of his failure that he owes six hundred dollars to the plaintiff He is responsible for the damages resulting from the non-execution of his engagement; and these damages are only due after he has been put in delay. See case of Erwin vs. Fenwick, 6 Martin n. s. 231. L. Code 1927.

It is therefore ordered adjudged and decreed, that the judgment of the district court be affirmed with costs.