
    No. 4412.
    J. Denny v. H. Simons.
    There was a total failure on the part of defendant to deliver at Havana, island, of Cuba, certain. articles contracted for. The interference of the military power of the government at the time has relieved him from the stipulated penalty in case of failure, but he must return the portion of the price received by him for the articles not delivered.
    APPEAL from the Fifth District Court, parish of Orleans. Lemmont, J\. J.
    
      Fellows & Mills, for plaintiff and appellant. F. O. Laibatt, for defendant and appellee.
   Howell, J.

Plaintiff sues for $30,000 paid by him on a written contract for the delivery to him, in Havana, of two hundred ox wagons, two hundred and fifty yokes and bows, thirteen hundred rings and staples, and twenty-five hundred iron keys, and the further sum of $10,000, as the stipulated penalty for the failure of the defendant to perform his part of the contract. The answer is a general denial. There was judgment of nonsuit, and the plaintiff appealed.

The defendant bound himself on the thirtieth January, 1865, to ship the above articles on or before the twenty-fifth of February following, and received three payments on the price amounting to $30,000, according to the stipulations of the contract. On the twenty-fifth of February, only fifteen of the wagons had been shipped, but with directions to the consignees to hold them subject to the order of the shipper. Fifty more of the wagons were subsequently put on board of a vessel, and the military authorities seized and detained them for some time. The cause of this seizure is not shown by competent evidence; that offered being hearsay was properly objected to by plaintiff; but he states in his testimony the fact of the seizure, and there is evidence that these wagons were subsequently in the yard of the defendant. The plaintiff was in Havana for the purpose of receiving the wagons, and several times applied to the agents or consignees for them without effect. There was a total failure on the part of the defendant to deliver these articles j but we think the interference of the military power of the government at the time relieved him from the stipulated penalty, but he must return the portion of the price received by him.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant the sum of thirty thousand dollars, with five per cent, interest from twenty-fifth February, 1865, and costs.  