delivered the opinion of the court.

The suit was founded upon a written contract between the plaintiff and defendant for the delivery of three or four hundred sheep, between the 1st and 20th day of November, 1865, at a certain price per head, at the Wedge House stockyard in St. Louis, not to contain more than one hundred lambs in the number, and to be sound and healthy, and tolerably free from burs. The petition stated the substance of the contract, and alleged that the plaintiff had in all things complied therewith, but that the defendant had refused to receive the sheep; and the plaintiff had a verdict for $878.73 damages and costs.

On the trial, the defendant excepted to the admission of the written contract in evidence, for the alleged reason that it did not support the petition. At the close of the plaintiff’s evidence, the court refused to instruct the jury, at the instance of the defendant, to the effect that the plaintiff was not entitled to recover. The defendant then proceeded with his testimony, and the cause was submitted to the court, sitting as a jury, without instructions.

The written contract offered in evidence by the plaintiff certainly supported the allegations of the petition. No material ground of variance is pointed out, and none appears to have been made a ground of special exception.

*600There was no error in refusing the defendant’s instruction. There was some conflict in the testimony as to the soundness of the sheep, but no insufficiency in that of the plaintiff to sustain his cause of action, or to warrant the finding of the court. We find no ground for disturbing the verdict.

Judgment affirmed.