The bill alleges that though the contract provided for the sale of 3,000 bales of cotton, of which 1,000 were to be delivered in each of the months of October, November, and December, 1929, that during that time 1,556 only were delivered, of which "728 were defective and were rejected by complainant and were by agreement of the parties referred to arbitration as provided for in said Southern Mill Rules, which board of arbitration ruled that *Page 579 the said cotton did not comply with the grade of cotton specified in said contract. And the said Cortner replaced to-wit 538 bales of said rejected cotton with other cotton and he failed" to ship, to wit, 1,400 bales. And further alleged that 68 bales which he shipped to replace the rejections were also rejected as not being up to specifications, "and which rejection of said sixty-eight bales by agreement of both parties were referred to said board of arbitration as aforesaid, which sustained such rejection, and ruled that said sixty-eight bales were not up to the contract."
Appellants complain that such allegations in respect to an arbitration are insufficient because they do not show: (a) Notice to him of the hearing by the arbitrators, nor (b) the names of the arbitrators, nor (c) the existence of a controversy or dispute for consideration by an arbitration. But no such objection was made by appellants in their demurrer to the bill. The allegation of an arbitration is not the foundation of the right and claim of complainant, but at most is only evidence to prove that the cotton which was delivered was not of the quality specified in the contract.
If it be conceded that the objections now urged are potent, and that demurrer on such ground would have presented a substantial defect of averment, we cannot say that the bill is subject to other grounds of demurrer because of those defects, for otherwise considered the bill shows a liability to complainant by Cortner, which is the proper basis of a creditor's bill in equity. The alleged arbitration, as submitted and conducted, must, of course, be such as is sufficient in law to be binding on the parties, though there may be an insufficiency of averment. But though not so submitted and conducted, complainant may otherwise establish its claim against Cortner, in so far as appears from the averments of the bill.
Appellants also argue that the bill is defective because it does not allege that at the time of the alleged breach by Cortner, complainant was ready, able, and willing to comply with the contract on its part. Such averment is usually necessary to sustain a suit for the breach of a contract to sell and deliver personal property, when the purchase price is payable on delivery. Long v. Addix, 184 Ala. 236, 63 So. 982; Sloss-Sheffield Steel Iron Co. v. Payne, 192 Ala. 69,68 So. 359, 360. While the bill makes claim for such a breach, it also claims damages on account of the delivery of cotton not of the quality embraced in the contract, and which was paid for by complainants. No such averment was necessary as to such claim. The demurrer on this ground was directed to the bill as a whole, and was properly overruled. Davis v. Anderson, 218 Ala. 557,119 So. 670.
It is also insisted that the bill should now offer to do equity. But after the breach of the contract to deliver, there is nothing due to be done by the purchaser to sustain a claim of damages for the breach, and in that event an offer in the bill now to do equity is not necessary. Davis v. Anderson, supra; Gill Printing Co. v. Goodman, 224 Ala. 97, 139 So. 250.
We have treated the contentions made on application for a rehearing, and we think that they are not sufficient to cause additional reason for a reversal of the decree.
The application is overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.