
    W. J. Rosenthral v. L. Baer.
    It is not necessary to put the defendant in default before instituting suit against him, if, fromtbe nature of tbe case, the demand would be of no avail if made.
    APPEAL from the District Court, Parish of Caddo,
    
      Weems, J. Looney & Wells, ior appellant. T. T. <& A. J). Land, for appellee.
    The facts are stated in the opinion of the Court.,
   Labauve, J.

This suit is brought to recover of the defendant the value of certain merchandise deposited by plaintiff with the defendant, in the year 1862. The answer of the defendant is a general denial. He specially denied that the plaintiff ever, at any time, stored with him any goods w-hatever, and that he never was called on or requested to deliver any merchandise to plaintiff.

The District Court gave judgment ia favor of plaintiff for 1300, with iu« terest, and the defendant took this appeal.

The first question raised by defendant in this Court is one of law : whether it was incumbent on plaintiff to put defendant in mora, before bringing this suit ? We are of opinion this case is not for damages suffered by plaintiff in consequence of the passive breach of defendant in failing to comply with an agreement by which he had bound himself to do something; but it is an action brought to make defendant pay certain goods deposited with him, and which he is alleged to have used. Besides, the petition alleges an active breach in saying that the defendant has used the goods. C. C. Arts. 1925, 1926. A demand would have been vain, as the defendant denies specially that any goods were ever deposited with him by plaintiff.

On the merits, the case depends entirely on facts, and the Court below was satisfied [with the proof ; and we are not prepared to say that the Court erred. We are of opinion that the pleadings and evidence sustain the judgment of the District Court.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.  