Walton

By the Court,

It is in evidence that Walton was employed by defendant to attend a government sale at Benicia, and there purchase for the latter certain merchandise, for which service he, defendant, was to pay plaintiff commissions at the rate of ten per cent, on the price.

The proposed purchases were made, and amounted to three thousand one hundred and ninety-two dollars and seventy-five cents.

Walton without consulting with defendant sold the same at an advance of eight hundred dollars, which profit was received and enjoyed by the latter, who refuses to pay the stipulated commissions, on the ground that the sale by plaintiff was unau-thorised by him,—that the goods were sold at a price of about one thousand dollars less than their true value. These latter facts are shown by the evidence, but nowhere appear in the pleadings.

*363 If the defendant is entitled at all to avail himself of this ground to defeat plaintiff’s demand, he should have specially pleaded it, which has not' been done, IIow the tortious act of the one part/ to a contract, after the performance of his covenant in the same, can relieve the other party from the obligation also to perform his covenants is not…