delivered the opinion of the court.

We do not think that the case of Perkins v. Milling Co., 88 Miss., 804, 40 South., 993, can be invoked as authority here. On a full hearing of this case the testimony shows that the *6failure to deliver the ties in question was not on account of a strike. This appears from the testimony of complainants. This defense was offered by appellant and much of the proof is addressed to this feature of the case. This being true, we cannot reverse for the failure on the part of complainants, to allege in their bill that the failure to deliver the ties was not on account of a strike at the mills, when the testimony clearly shows this. The bill of complaint was probably demurrable on account of its failure to allege that the failure to deliver the ties was not because of any strike; but no 'demurrer was filed. There would be much force in the contention of appellant that a strike prevented the delivery of the goods if the contract for delivery had been for July, instead of June. The contract was for a June delivery. The strike occurred during the month of July. Searles Bros, requested a change in the contract, so as to. make-it a July delivery; but the appellant declined to change the contract in any way, but offered to carry the ties at a half cent per bundle for each month or part of a month they were kept for Searles Bros. This was agreed to, and the agreement must have been to carry the actual ties, as appellant had refused to change the contract in any way, and charges were made for.carrying the. actual ties. There is no claim that, if the actual ties were carried, they could not have been delivered as called for under the contract because of the strike in the mills. When the mills shut down because of the strike in them, transportation facilities were still open. These ties, by the contract' of appellant, were in existence in June, and were merely held in storage for Searles Bros, subject to their order, and for the holding of same appellant charged a half cent per bundle. It is no answer to this contract to show that the mills were closed in July because of a strike, and that on that account the appellant could not manufacture ties with which to fill the order to Searles Bros, which it was obligated to have in existence in June. By the refusal to change the original contract and by the subsequent contract of carriage it is estopped to. set up^ the fact that the ties *7were not and could not be manufactured, so as to meet the order, from causes arising after the ties should have been in actual existence and when charges were being paid to it on the actual existence of the ties.

We do not think that the $64.10 should have been allowed. This 'claim is for short weights on one thousand two hundred eighty-two bundles of ties. When Searles Bros, discovered the short weight, they notified appellant that they held the ties subject to its order, and after so notifying appellant, and with full knowledge of the short weight, accepted the ties and used them. On this account we do not think that this item should be allowed.

The decree is affirmed, provided there be a remittitur of this amount, with interest; otherwise, it is reversed and remanded— all cost of appeal to be taxed against appellees.

Affirmed with remittitur.