{after stating the facts). The court instructed the jury that Anderson was not agent for defendants, but that he was the agent for plaintiff, and, if they found that the potatoes were merchantable when delivered to the carrier at New Orleans, plaintiff was entitled to recover, but, if they were not merchantable, they should find for the defendants. The testimony was in direct conflict.
Error is assigned upon the failure of the court to instruct the jury that “merchantable” means “specially inferior to the best or the selected quality, but sufficiently good for ordinary purposes; that it means more than salable for any price; and that defendants, in ordering the potatoes, had ordered that a careful selection be made.” No such request was made to the court, nor does it appear from the record that any such point was made. It cannot, therefore, be considered by us. The case was evidently tried upon the theory shown in the court’s instructions.
Error is also assigned upon remarks of counsel for plaintiff to the jury. The record does not show any objection or exception, or what the remarks were, or that .the attention of the court was called to them. The objection was made afterwards upon a motion for a new trial, in the denial of which we concur.
Judgment affirmed.