The Court, Comegys, C. J.,
charged the jury, that the contract according to the evidence was for the purchase of a lot of railroad cross-ties, eighteen hundred and eighty in number, at forty cents each, from the plaintiff by the defendant, and if they had then been made, and the defendant had then seen them, or had specially contracted to buy that particular lot of cross-ties at the price stipulated, he was bound to accept them and to pay that price for them when they were tendered to him at the place agreed on. But if they were not then made, or were not then capable of being seen and examined by him, he was not bound to accept them, or any part of them, unless they were standard and merchantable ties, worth that price in the market at the time the contract was entered into.
Moore for plaintiff.
Cullen for defendant.