Instructions by

The facts sufficiently appear from tbe instructions.

Rodey, Judge, omitting the formal parts, gave the following charge and instructions to the jury:

This is the most usual kind of a controversy between merchants. The plaintiffs claim — and I believe it is not disputed — ■ that they sold defendants 900 pockets of rice from sample at $3.65 per pocket. The defendants state that when the rice arrived it was not up to sample in quality, and they deny that they in fact ever received or finally accepted it. Plaintiffs claim that defendants accepted some of it on the wharf. Defendants say it was brought to their warehouse and examined there, and that they refused it, save with a reduction in price. You must determine which side has the truth with it as to this.

1 If you believe, from a preponderance of the evidence, .that defendants never in fact finally accepted any of this rice, and that the same was not in fact up to the sample, as understood by the parties at the time the original sale was made, and that plaintiffs had proper notice of the refusal to receive it, then you should find for the defendants on the main issue, and further find in their favor such damages as you believe they are entitled to on the evidence, not exceeding the $2,000 they claim in their counterclaim, for the loss of the profit they would have made on the 811 pockets attempted to be delivered under the contract.

You are instructed that plaintiffs claim only for the 403 pockets which they say they delivered to defendants, but they also claim that they are entitled to get the market value, whieh *69they assert is $3.90 per pocket for the rice, instead of $3.65, which it was sold at under the contract, because of the defendants refusing to receive the balance; Therefore, if you find that the 403 pockets were in fact accepted by defendants as up to contract, or that they were in fact up to contract, and ought to have been accepted, then you will find for plaintiffs, and assess their damages at such sum as you may believe the rice delivered to have been worth, not less than the price agreed upon in the contract, provided you believe that the plaintiffs tendered the balance of the rice to them and that it was also up to sample, and that the defendants wrongfully refused to receive the same; and you may add such damages, if any, as the evidence shows you plaintiffs were put to by reason of the nonacceptance of the remaining portion of the rice.

The verdict was for plaintiffs for 403 pockets of rice delivered, at $3.90 per pocket.