
    DANIEL STEELMAN, RESPONDENT, v. FRANK FARKAS, APPELLANT.
    Submitted December 8, 1919
    Decided March 1, 1920.
    On appeal from the Supreme Court, in winch the following per curiam was filed:
    “The suit is Cor damages for alleged breach by defendant of an agreement to sell certain manure to plaintiff; and also (second count in the state of demand) for the conversion by defendant of certain other manure, the property of plaintiff. The trial court sitting without a jury awarded damages to plaintiff on each count.
    “As to the first count, the facts- are concedecUy that defendant orally agreed to sell the manure mentioned in that count .for $50, and that plaintiff was to hand his check the same day to one Splain, or mail the check the next day to defendant at Belcoville. If appeared that plaintiff did mail the cheek on the day specified, addressing it to defendant, Camp 25, Belcoville, which, so far as appears, is the correct address. The letter was legistered. Defendant testified that he did not inquire at the post office for the letter, and received no notice ,of its arrival. Defendant sold the manure to another party the day after plaintiff mailed the letter.
    “It is claimed that plaintiff cannot recover on this count because he did not carry out his part of the agreement. But .tire court was fully justified in finding that he did. He mailed the check, at the time specifited, to the -address stipulated (adding Camp 25, which appears immaterial). It is proper to find that if the defendant did not get the check it "was; his fault in not asking for his mail. The check and letter enclosing it were returned by the post office to plaintiff about nineteen days later, and it is now claimed that he should have tendered payment to defendant, as a condition precedent to suit. But as defendant had sold the manure this would have lieen futile, and, hence, under the well-settled rule, was not required. The finding for plaintiff on the first count was justified ; the amount of dámages is not before us for review.
    “As to the second count, it is said there is no evidence that defendant sold manure belonging to plaintiff. This is erroneous. Defendant admitted selling manure ‘out of the Mc-Nichol pile/ and plaintiff and MeNichol-both testified as to plaintiff’s ownership-, either general or special, of that manure. Either will support trover. The amount of damages is likewise not before us.
    “The judgment is affirmed, with costs.”
    For the appellant, Baibcoclc .& Champion.
    
    For the respondent, William II. Smathers and Endicott & Endicott.
    
   Pee Curiam.

The judgment under review will be affirmed, for the reasons -set forth in the opinion of the Supreme Court.

For affirmance — The Chancellor, Chibe Justice, Trenchard, Bergen, Minturn, Kalisci-i, Black, White, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson, ,JJ. 13.

For reversal—None.  